Babcock v. Chi. & N. W. Ry. Co.

• Decision Date: 25 June 1887
• Citation: 33 N.W. 628,72 Iowa 197
• Court: Iowa Supreme Court
• Parties: BABCOCK AND ANOTHER v. CHICAGO & N. W. RY. CO.

72 Iowa 197

33 N.W. 628

BABCOCK AND ANOTHER

v.CHICAGO & N. W. RY. CO.

Supreme Court of Iowa.

June 25, 1887.

Appeal from circuit court, Story county.

Opinion upon rehearing, on appeal from judgment rendered against the defendant railway company, in an action to recover damages for property alleged to have been destroyed by fire set by defendant's engine. The original decision of this appeal is reported in 28 N. W. Rep. 644. For opinions on a former appeal and rehearing, see 62 Iowa, 593, 13 N. W. Rep. 740, and 17 N. W. Rep. 909.

BECK, J., dissenting.

Hubbard, Clark & Dawley, for appellant.

Caswell & Meeker, for appellee.

SEEVERS, J.

In a petition for a rehearing, our attention is called to the fact that we failed to determine a question made by counsel for appellant, and upon again looking into the record we think this position must be sustained. We proceed, therefore, to determine such question. It is this: The court instructed the jury that “negligence is defined as want of ordinary care; and may be evidenced * * * in various ways,” such as “the employment of unskillful or careless engineer and fireman; * * * and if you find from the evidence that the defendant ‘carelessly and negligently managed its road’ in this respect, and that by reason of such negligence a fire was set out, the defendant is liable.” Without doubt, we think the court instructed the jury that if they found the engineer and fireman were unskillful, and that by reason thereof the fire was set out, then the plaintiff was entitled to recover, and it is contended by counsel for the appellant that there is no such issue, and, if there was, there is no evidence tending to establish such fact. There is no allegation in the petition that the “engineer and fireman” were unskillful. There is, however, this allegation: that the defendant permitted the engine to be out of “repair, and carelessly and negligently used.” At most, this may amount to a charge that the engineer and firemen were negligent, and this is materially different from an allegation that they were unskillful or incompetent. Under the issue, the burden was on the defendant to show the engineer and fireman were not negligent or careless. But, as will be observed, the court submitted to the jury the question whether the engineer and fireman were unskillful. That is incompetent, and we feel constrained to say that there was no such issue, and therefore the judgment of the district court must be reversed.

BECK,...