Griswold v. Ill. Cent. R. Co.

• Decision Date: 19 October 1892
• Citation: 53 N.W. 295
• Parties: GRISWOLD ET AL. v. ILLINOIS CENT. R. CO.
• Court: Iowa Supreme Court

53 N.W. 295

GRISWOLD ET AL.

v.ILLINOIS CENT. R. CO.

Supreme Court of Iowa.

Oct. 19, 1892.

Appeal from district court, Buchanan county; J. L. HUSTED, Judge.

Action to recover damages for the loss of an elevator by fire, alleged to have been caused by negligence on the part of defendant. A demurrer to the answer was overruled. The plaintiffs electing to stand on their demurrer, judgment was rendered against them for costs, and they appeal.R. W. Barger and E. E. Hasner, for appellants.

W. J. Knight, for appellee.

ROBINSON, C. J.

The facts disclosed by the pleadings, which are material for consideration on this appeal, are substantially as follows: On the 30th day of April, 1890, the plaintiff Griswold owned a two and one half story elevator building, warehouse, and corncrib attached, together with engine and boiler connections and feed mill therein, all of which were situated on the depot grounds of defendant immediately north of its track, in the village of Winthrop. In the morning of the day named the property described was totally destroyed by fire, which was kindled by sparks and cinders from a locomotive engine of defendant while passing on its track. The sparks and cinders escaped from the engine in consequence of defects in its construction and appliances, and in consequence of the negligent manner in which it was operated. The property destroyed was of the value of $6,000, and was at the time insured by the plaintiffs, the Iowa State Insurance Company, the Commercial Union Assurance Company, Limited, the St. Paul German Insurance Company, and the Farmers' Fire Insurance Company, in the sum of $1,000 each, or for the aggregate amount of $4,000. After the property was destroyed, each insurance company paid the amount of loss for which it was responsible, and claiming that, by reason of such payments, they became subrogated to the rights of Griswold to the extent of the amounts so paid, they join him in demanding judgment against defendant for the value of the property destroyed. Griswold occupied the premises on which the property stood by virtue of a lease to him from defendant, which contained the following provisions: “And the lessee, in consideration of the premises, hereby covenants and agrees with the lessor, its successors and assigns, to pay the said lessor, as rent for said described premises, the sum of one dollar, to be paid at the time and in the manner following, to wit, on the delivery of this lease; and the lessee further covenants and agrees with the lessor that he will, from the date of this indenture, put to use and maintain a good substantial elevator, coal sheds, and lumber yard on the above-described premises; and further agrees to protect and save harmless said lessor from all liability for damage by fire, which in the operation of the lessor's railroad, or from cars or engines lawfully on its tracks, may accidentally or negligently be communicated to any property or structure on said described premises. And the said lessee hereby agrees to ship all grain, coal, and lumber he can control by the Illinois Central Railroad; and the said lessee further covenants and agrees with the said lessor that he will transact the business for which said buildings are erected and designed at fair and reasonable rates, and in a prompt and careful manner, so that neither the company nor the public will be prejudiced by reason of the said lessee dealing unfairly or negligently in their behalf, or in the transaction of the business connected with the grain, coal, and lumber building so erected as aforesaid.” The defendant claims that plaintiffs are not entitled to recover, for the reason that Griswold undertook, by the terms of the lease, to protect and save it harmless from such losses as that in question.

The ground of the demurrer is as follows: “The petition and answer show that the action is commenced by the owner and insurer of an elevator built upon defendant's land alongside of its track, for the purpose of handling grain, and that said elevator was burned through the negligence of defendant, its agents and employes. The plaintiffs, therefore, say it is against public policy, and contrary to the statutes of Iowa, for the defendant to attempt to restrict by contract its liability for the negligence of its agents, employes, and servants; and that said defense, so far as it is based upon exemptions from liability by reason of this contract of lease, is not good, as such contract of exemption is void.” No special claims are made in behalf of the insurance companies; therefore their interests, and that of Griswold, for the purposes of this appeal, will be treated as governed by the same rules.

1. Section 1289 of the Code provides that “any corporation operating a railway shall be liable for all damages by fire that is set out or caused by operating of any such railway. * * *” It was said in West v. Railway Co., 77 Iowa, 654, 35 N. W. Rep. 479, and 42 N. W. Rep. 512, that this statute imposes an absolute liability upon railroad corporations, without regard to the contributory negligence of the person injured, for damages resulting from fires set out or caused by negligently operating their railways. The facts admitted in this case show that the fire in question was caused by defendant in operating its railway, and that the fire was the result of negligence on its part. Whether a railway company may limit its liability for a fire which it causes, without fault on its part, is a question not involved in this case; but we are required to determine whether a railway company may, by a contract entered into before the act, limit its liability for a fire which is caused by negligence on its part in operating its railway.

Section 1308 of the Code provides, in effect, that a common carrier, or carrier of passengers, cannot exempt itself from liability as such carrier by contract. Although there is some conflict in the authorities, yet it is the general rule, in the absence of statutory regulations, that railway companies cannot restrict their liability for negligence, in transporting passengers or freight, by contracts made in...