dissenting.
It is correctly stated, in the prevailing opinion, that a shipper of live stock who receives, from the railroad company undertaking the transportation of such stock, a free pass to enable him to care for his stock in transit, assumes such risks and inconveniences as necessarily attend upon that manner of travel and the caring for such stock; and, modified accordingly, the liability of the railroad company to such shipper, for personal injuries by him sustained by reason of the negligence of its employees, is that of a common carrier for hire. It follows, that the plaintiff’s right to recover for the injuries complained of in this case, depend upon some actionable negligence on the part of the defendant company. As I read the record, no such negligence is shown. The space between the railroad tracks, where the plaintiff was walking, in order to reach the caboose, as explained in the majority opinion, was wide *308enough for his safe passage, if he had exercised ordinary care to avoid being struck by the defendant’s passing engine. This fact was clearly established when it was shown that the defendant’s yard, including the tracks and space in question, were constructed more than 25 years ago, and from that time to this has been used by the public for passage, the same as it was being used by the plaintiff at the time of the accident, and by the employees of the railway company to do their work in and about the yard, without other accident or injury than the one now complained of. The plaintiff, it appears, was entirely familiar with the situation, and such familiarity may have made him careless and inattentive to his surroundings, when he inadvertently stepped to one side, and thus suddenly put himself in front of the approaching switch engine. It seems to me that the negligence which caused the injury complained of, if any, was the plaintiff’s negligence, and therefore I am of opinion that our former judgment should be vacated, and the judgment of the district court reversed.