DeLashmutt v. Chi., B. & Q. R. Co.

• Decision Date: 13 May 1910
• Citation: 148 Iowa 556,126 N.W. 359
• Court: Iowa Supreme Court
• Parties: DELASHMUTT ET AL. v. CHICAGO, B. & Q. R. CO. ET AL.

148 Iowa 556

126 N.W. 359

DELASHMUTT ET AL.

v.CHICAGO, B. & Q. R. CO. ET AL.

Supreme Court of Iowa.

May 13, 1910.

Appeal from District Court, Mills County; N. W. Macy, Judge.

Suit to recover damages alleged to have been caused by an insufficient waterway under one of appellants' bridges. There was a verdict and judgment for the plaintiffs. The defendants appeal. Affirmed.W. S. Lewis and W. E. Mitchell, for appellants.

C. E. Dean, Genung & Genung, and John Y. Stone, for appellees.

SHERWIN, J.

In 1907 the plaintiffs, as partners, were engaged in farming a large tract of land, and they were damaged by water which passed onto a part of said land through a break in the west levee of the Pony Creek ditch. The Chicago, Burlington & Quincy Railroad Company is the owner of a north and south road that crosses the ditch in question on a steel girder bridge about 66 feet in length; the distance between the banks of the ditch at that point being 50 feet or more. The steel girders are about 6 1/2 feet wide, and at the time in question they extended below the top of the ditch levees from 2 to 3 feet. Where the defendants' road crosses it, the ditch is constructed practically east and west, but about a half a mile east of said point the ditch curves and runs almost directly north for some distance. In the evening of the 14th of July, 1907, there was a rainfall of 3 or 3 1/2 inches in that locality. The water filled the ditch so full that it overflowed the levees on both sides in many places, and broke through the west levee just north of the curve in the ditch of which we have spoken, doing the damage for which plaintiffs ask a recovery. The plaintiffs claim that the break in the levee was caused by the defendants' obstruction of the ditch with its bridge.

The question of a misjoinder of parties defendant was properly raised in the trial court, and both defendants now insist that they were improperly joined. While the Chicago, Burlington & Quincy Railroad Company was the owner of the road, it leased the same to the Chicago, Burlington & Quincy Railway Company in 1901, and the latter company operated it until the 30th day of June, 1907, when the lease was canceled and the possession and operation thereof was surrendered to the former company. It is therefore undisputed that on the 14th day of July, 1907, the railway company was not in possession of or operating the road, and based upon such fact the railway company contends that it is not liable for plaintiff's loss. The railroad company urges that it is not liable for the reason that the bridge in question was constructed and, until the surrender of its lease, was maintained by the railway company, and the railroad company had had no notice that it was an obstruction to the flow of water in the ditch. These three contentions of the appellants may properly be disposed of together.

Code, § 2039, provides as follows: “All the duties and liabilities imposed by law upon corporations owning or operating railways shall apply to all lessees or other persons owning or operating such railways as fully as if they were expressly named herein, and any action which may be brought or penalty enforced against any such corporation by virtue of any provisions of law may be brought or enforced against such lessees or other persons.” It was the primary duty of the owner of the road to construct and maintain over the ditch a bridge that would not obstruct the passage of water, and, if it failed in either respect, it would be liable for damages occasioned by such failure. Hence, if the defendant railway company, as lessee, so constructed the bridge in question, or so maintained it, as to prevent the free flow of water down the ditch, it is liable under section 2039. The evidence is overwhelming that the girders of the bridge were so low that, when the ditch was well filled, they would catch the floating débris and dam the ditch for some distance east of the bridge. Their obstruction of the passage of the water also caused sediment to settle in the bottom of the ditch, thereby raising the same and correspondingly lessening the depth of channel. The bottom of the ditch at the bridge and east thereof had thus been raised long before the railway company surrendered its lease, and there seems no escape from the conclusion that it is liable under the statute.

As we have heretofore said, it was the duty of the owner of the road to construct and maintain bridges that would not obstruct the passage of water, either in a natural water course, or in a ditch authorized by law. The question then arises whether the leasing of the road, its properties, and its operation, relieves the owning company from liability for the faulty construction of bridges by its lessees, or from liability for the negligent maintenance of the same.

The appellant railroad company contends that, since the statute (section 2066) authorized the lease of its road, it is not liable for the negligent act of its lessee. But with this contention we cannot agree. An early case deciding the question before us is Washington, Alexandria & Georgetown Railroad Company v. Catherine Brown, 17 Wall. 445, 21 L. Ed. 675, wherein Mr. Justice Davis, speaking for the court, said: “It is the accepted doctrine in this country that a railroad corporation cannot escape the performance of any duty or obligation imposed by its charter or the general laws of the state by a voluntary surrender of its road into the hands of lessees. * * * The operation of the road by the lessees does not change the relations of the original company to the public.” This rule seems to obtain generally in this country. See cases cited in 5 U. S. Dig. § 121. In 20 Am. & Eng. R. Cas. Ann. 847, the rule is laid down as follows: “A railroad company which has leased its road, cars, and engines, and allows the lessee company to operate the same, is liable to third persons or the public for the carelessness and negligence of the lessee and for defects in the construction and maintenance of the road and its equipment, unless there is a statutory provision to the contrary.” A large number of cases are there cited in support of the rule thus stated, and, so far as we have examined them, they do support it. Some of the cases go to the length of holding that the lessor road is liable for injury to passengers and employés, but we need not go so far in this case. It seems to be the almost universal holding that the lessor corporation is liable for a breach of duty which it owed to the public, whether it is or is not liable for the omission of duties not falling within this classification. And it is also generally held, we think, that even where the statute authorizes the lease of a road, but contains no clause exempting the lessor from liability, the lessor still remains liable for an injury resulting from the negligent omission of a duty owed by it to the public, such as the proper...