Engle v. Chi., M. & St. P. Ry. Co.
| Decision Date | 09 March 1888 |
| Citation | 77 Iowa 661,37 N.W. 6 |
| Court | Iowa Supreme Court |
| Parties | ENGLE v. CHICAGO, M. & ST. P. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from superior court of Cedar Rapids.
Action by J. G. Engle to recover the value of certain property, which was destroyed by a fire set, as is alleged, by the operation of the railway of the defendant, the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals.Mills & Keeler, for appellant.
B. F. Heins and Smith & Powell, for appellee.
It is alleged in the petition that defendant negligently permitted a large amount of dry grass and herbage to accumulate and remain in its right of way, and that fire was communicated to the same from a locomotive which was being run upon the track, and that the fire set out spread upon plaintiff's premises and destroyed the property in question. It is also averred that defendant was guilty of negligence in the operation of its road, whereby the fire was set out and the property destroyed, On the trial, plaintiff proved the destruction of his property by fire, and the amount of his damages. He also introduced evidence tending to prove that the fire, which caused the damage, was set out by a locomotive and train of cars, which passed upon defendant's railway shortly before the fire was discovered. He then rested, and defendant introduced evidence which tended to prove that the locomotive, which it was claimed set out the fire, was equipped with such appliances for preventing the escape of fire as were in general use by the railroads of the country, and that the same were in a good state of repair, and that it was operated in a skillful and careful manner. Plaintiff was then permitted, against defendant's objection, to introduce evidence tending to prove that the locomotive had set out a number of other fires on the same trip; also that there was an accumulation of dry grass and herbage on the right of way at the point where the fire started, and that it originated in that material. The superior court also instructed the jury that plaintiff was required, in making out his case originally, to prove the injury and damage alleged, and that the fire which caused it was set out by defendant in the operation of its railroad, and that, if he had established those facts, the burden was cast upon defendant to show that it was not guilty of negligence or want of ordinary care in the matter. These rulings were assigned as error, and it was contended (1) that plaintiff, having alleged that defendant was guilty of negligence, in permitting the combustible material to accumulate and remain on the right of way, and in the operation of its locomotive, he voluntarily assumed the burden of proving that allegation; and (2) if defendant's only negligence consisted in permitting the combustible material to accumulate and remain on the right of way, which the jury might have found under the evidence, as such negligence did not pertain to the operation of the road, the burden of proving it was upon plaintiff; the position of counsel being that the presumption of negligence, which arises from the occurrence of the fire, relates only to the operation of the road; and hence it is contended that the court erred, both in permitting plaintiff to introduce evidence to establish that averment for the first time in rebuttal, and in the instructions given. But, in our opinion, neither of these positions is correct.
When an injury has been occasioned by fire set out in the operation...
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