Page:North Dakota Reports (vol. 48).pdf/463

 plaintiffs testified. They were gone about 20 minutes or so. On their way back from dinner they met La Due, proceeding on foot for his dinner. One of them hollered that something was wrong with the cattle; they went to the north end of the reservoir and discovered that some 60 head of cattle had gone through the opening there, and.were in the water at the north end from the bank for a distance of 30 feet or so. Two boys, witnesses for the defendant, testified that the cattle went through the opening between the "spoil banks" at the northeast corner, the overflow outlet. Help was summoned, and after some three hours effort the cattle were extricated from the water. Six were then dead; others died during the day. The cattle remaining were shipped to Steele on the following day. More of the inundated cattle perished, although given good care. In all, 44 were lost. These openings at the north end of the reservoir were not protected by any fence or barriers. They were situated upon the railway right of way. Prior to the loss of the cattle the plaintiffs did not know of these openings. Then (Novenmber 28, 1919), the reservoir was well covered with thick ice, excepting at this place where the cattle got in the water. There, as one witness testified, he never saw the water frozen over completely. He had lived about 300 feet from the reservoir for three or four years, and had helped pull out these cattle. Another witness who assisted in taking out the cattle testified that the water in the reservoir freezes to the ordinary depth of water in creeks and open watering places in that locality, excepting that the north- east corner does not freeze as hard; that there was a thin scum of ice over that particular portion; that he thinks perhaps they tapped a spring, in constructing the reservoir, that came from the little stream there. He was familiar with the ground before the construction of the reservoir, and he remembers a large spring formerly to the north of the reservoir. The plaintiffs testified that there was not much ice where the cattle fell in the water, and that it was not possible for them to crawl out of such place.

The plaintiffs, in their pleadings and contentions upon the record. have predicated negligence of the carrier through its failure to have proper room and place for receiving and loading the stock, in directing and permitting the stock to be held in the vicinity of the reservoir, and in failing to properly safeguard the reservoir and the place where the cattle were held.