German Ins. Co. of Freeport v. Chi. & N. W. Ry. Co.

• Decision Date: 12 July 1905
• Citation: 104 N.W. 361,128 Iowa 386
• Parties: GERMAN INS. CO. OF FREEPORT v. CHICAGO & N. W. RY. CO.
• Court: Iowa Supreme Court

128 Iowa 386

104 N.W. 361

GERMAN INS. CO. OF FREEPORT

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

Supreme Court of Iowa.

July 12, 1905.

Appeal from District Court, Carroll County; F. M. Powers, Judge.

Action to recover damages for the destruction by fire of a dwelling house and contents upon which plaintiff had a fire insurance policy in the sum of $1,000, which indemnity it paid to the original owner of the property destroyed.Liability on the part of the company is predicated upon its setting out the fire.Defendant denied that it was responsible for the fire, and denied all negligence on its part.It also pleaded a settlement with the owner of the property, but as it withdrew this defense during the course of the trial the case was submitted upon the other issues tendered.There was a trial to a jury, resulting in a verdict and judgment for the defendant, and plaintiff appeals.Affirmed.J. A. Crain and Lee & Robb, for appellant.

James C. Davis, A. A. McLaughlin, and M. W. Beach, for appellee.

DEEMER, J.

Something like 18 errors are assigned as a reason for the reversal of the judgment.Not all are argued, and we shall only consider those which seem to be important or controlling.Most of these center around the instructions given and refused, although there are two or three rulings on evidence which are challenged.These latter relate to the testimony of experts as to the construction and operation of engines.

Claim is made that the defendant, in the negligent operation and construction of its engines, set fire to an elevator in the town of Glidden, which was communicated by this elevator to the insured dwelling house of one Nichols, totally destroying the same with its contents.Defendant denied all negligence, and pleaded that its engines were properly and carefully managed, and were supplied with the best known and most approved appliances for preventing the escape of fire and sparks, which were in good repair, and carefully managed.In making out its case, a witness who showed proper qualifications was asked if there was any way in which sparks or fire coming from the fire box could get above the netting at the front end of the engine without going through the netting.As this testimony had reference to the only engines which could have set out the fire, it was manifestly competent and material.True, it was perhaps in the nature of a conclusion, but it was such a one as courts universally permit.Yahn v. City of Ottumwa, 60 Iowa, 429, 15 N. W. 257, and other like cases.Other qualified witnesses described the character of the engines which might have set out the fire as belonging to what is known as class “R.”They were then asked as to the quality and equipment of such engines with regard to safety and the setting out of fires, and answered that in this respect the draft, netting, and appliances were constructed the same as on other engines on the defendant's system, and that they were, as a class, the best engines the company had.They were also asked what features of a locomotive were to be considered in connection with the setting out or the prevention of fires.To this the responses were: netting, diaphragm, plates, netting in front end or smoke box of the engine.Other witnesses were asked as to whether an engine could be operated without small cinders escaping from the smokestack.They answered “No.”Manifestly these questions and answers were each and all competent, material and relevant.Most of the testimony was from experts regarding the character and construction of the engines, and, although some of the questions called for answers in the nature of conclusions, they were not objectionable on that account.

2.Instead of condensing the pleadings and giving a short and succinct statement of the issues, the trial court practically copied them in its instructions.This practice is not to be commended, but there was nothing in this case which would in any way confuse or confound the jury.Moreover, the exact points for decision by the jury were clearly stated in other parts of the charge, and no prejudice resulted.City v. Moore, 109 Iowa, 476, 80 N. W. 527;Welch v. Ins. Co., 117 Iowa, 394, 90 N. W. 828;Schaefer v. Ins. Co. (Iowa)100 N. W. 857.

3.Error is predicated upon the court's failure to submit the issue which was withdrawn by the defendant.No discussion of such a question seems necessary.It would have been error to have submitted it after its withdrawal.West v. Averill, 109 Iowa, 488, 80 N. W. 555.

4.The court instructed that the burden of proof was upon the plaintiff to establish all the material allegations of its petition.If this were all, doubtless the case should be reversed, for a plaintiff is never required to prove more than is necessary to entitle him to recover; and a jury, under such an instruction would have difficulty in separating the material from the immaterial matters.But in other instructions the jury was told just what plaintiff was required to show in order to make out a case.After reading the instructions as a whole, the jury could not have been left in any doubt as to what were the material allegations.Plaintiff's petition was in two counts, and it is contended that it might recover if it established either.This is fundamentally correct; but in this casedefendant's liability was predicated on a single theory, and this was fairly submitted to the jury.The trial court instructed that if the jury found that the fire was set out by one of defendant's engines, which finally destroyed the insured property, then the presumption arose that defendant was guilty of negligence, and, in order to avoid liability, the burden was on defendant to overcome this presumption by negativing every fact which would justify a finding of negligence on its part.And in another instruction this same thought was practically repeated.The burden of overcoming this presumption of negligence was thus cast upon defendant, and the jury was clearly instructed that, unless defendant overcame this presumption, and met the burden, it was liable; and, if liable, that the measure of its responsibility was fixed at the amount plaintiff paid the insured Nichols, with 6 per cent. interest from the time of payment.This eliminated all collateral matters, and introduced nothing that plaintiff was not required to prove in order to recover on either count of its petition.

5.After instructing as above with reference to presumptions, the trial court said in another instruction that, even though defendant's engines set out the fire, yet there could be no recovery unless the jury further found that the sparks escaped or were thrown from the locomotive through...