Page:North Dakota Reports (vol. 48).pdf/465

 This duty attaches although the control and management of the stock remain entirely with the shipper until loading begins. Zakrzewski v. G. N. Ry., supra.

Upon this record the questions presented are (1) whether, as a matter of law, the carrier was free from negligence in the performance of this duty stated, and (2) whether, as a matter of law, the plaintiffs were guilty of contributory negligence.

The carrier contends that the carrier did not invite the plaintiffs to turn their cattle loose without a herder or to use the reservoir to water their cattle; that in permitting the cattle to get in the reservoir and using a portion of the carrier’s premises where they were not invited the plaintiffs were trespassers or at best mere licensees. It further maintains that there is no proof that the carrier invited or directed the plaintiffs to use this particular spot adjoining the reservoir for holding the stock, and that the failure to fence the reservoir was not negligence.

Does the record sustain the contentions of the carrier, as a matter of law? The answer must be considered in connection with the duty of the carrier in the receiving of cattle for shipment. he carrier has neither considered nor discussed this duty. The negligence of the carrier does not turn upon the question whether the plaintiffs were licensees or invitees, as such, but rather upon the question whether the facilities and utilities tendered to the plaintiffs for the reception of the cattle preparatory to, and while awaiting, shipment, were furnished pursuant to its duty.

It is undisputed that the carrier did recognize the necessity of maintaining facilities and utilities at Belfield for the receiving of cattle prior to and while waiting shipment. It is admitted that the carrier did maintain there stockyards for such purpose. It is further undisputed that cattle were customarily held upon this plot of ground where the reservoir is situated preparatory to, and while waiting, shipment. There is evidence in the record that on November 28, 1919, the stockyards were not available for the use of the plaintiffs. There is further direct evidence that the agent of the carrier directed the plaintiffs to hold, feed, and water their cattle near the reservoir both for purposes of shelter and for water, all preparatory to and while waiting shipment.

The reservoir was an artificial creation. The water therein was deep; the banks were steep, almost precipitous. The “spoil banks,” serv-