Connors v. The Chicago & Northwestern Railway Company

• Decision Date: 15 May 1900
• Citation: 82 N.W. 953,111 Iowa 384
• Parties: JOHN CONNORS v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

82 N.W. 953

111 Iowa 384

JOHN CONNORS v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 15, 1900

Appeal from Kossuth District Court.--HON. F. H. HELSELL, Judge.

ACTION for damages occasioned by a fire alleged to have been set out and negligently permitted to escape by defendant's employes when burning weeds and grass along its right of way. Verdict and judgment for the plaintiff, and the defendant appeals.

Reversed.

Hubbard Dawley & Wheeler for appellant.

Clark & Cohenour and F. M. Miles for appellee.

OPINION

LADD, J.

The fire which destroyed the plaintiff's hay and injured his slough originated from a fire set out by the defendant's sectionmen in burning the grass and weeds along its right of way, or else from a cinder pile dumped from a thresher engine previously operated on the premises. In either event recovery could only be had from the party at fault on an affirmative showing of negligence. This is conceded, unless it may be said that the fire was "set out or caused by operating" the defendant's railway. See Gandy v Railroad Co., 30 Iowa 420. If so done, then, under section 1289 of the Code of 1873, the burden of proof was upon the defendant to show the exercise of care on the part of its employes. Small v. Railway Co., 50 Iowa 338; Rose v. Railway Co., 72 Iowa 625; Engle v Railway Co., 77 Iowa 666; Metzgar v. Railway Co., 76 Iowa 387. The important inquiry, then, is, what is meant by "operating a railway?" In none of the cases heretofore determined has the application of the statute gone beyond a fire set out or caused by an engine on the track. But under the co-employes' act (Code, section 2071), allowing recovery by an employe injured by negligence "in any manner connected with the use and operation of any railway on or about which they shall be employed," the clause "use and operation of any railway" has been frequently considered and defined. Thus, in Stroble v. Railway Co., 70 Iowa 555, the court, through Beck, J., said: "What is the use and operation of a railway? It is constructed for the sole purpose of the movement of trains. That is its sole use. What is the operation of a railway? They can be operated in no other way than by the movement of trains." In Nelson v. Railway Co., 73 Iowa 576, the movement of steam ditching machines, and in Larson v. Railway Co., 91 Iowa 81, that of a hand car, were held to be operating a railway. In Akeson v. Railway Co., 106 Iowa 54, after reviewing the authorities, the court concluded that: "The only dangers peculiar to railroading are those occasioned by the movement of the engines, cars, and machinery on the track, or directly connected therewith. It is evident that the statute contemplates such injuries only as are caused by the negligent acts of employes so engaged. In no other proper sense is a railway used and operated. * * * If, then, the injury is received by the employe whose work exposes him to the hazards of moving trains, cars, engines, or machinery on the track, and is caused by the negligence of a co-employe in the actual movement thereof, or in any manner directly connected therewith, the statute applies, and recovery may be had. Beyond this the statute affords no protection." Appellee relies somewhat on the language employed in Haden v. Railway Co., 92 Iowa 226. There the employe whose negligence caused the...