Lewis v. The Chicago, M. & St. P.R. Co.
| Decision Date | 25 October 1881 |
| Citation | 10 N.W. 336,57 Iowa 127 |
| Parties | LEWIS v. THE C., M. & ST. P. R. CO |
| Court | Iowa Supreme Court |
Appeal from Palo Alto District Court.
ACTION to recover the value of certain hay and corn burned by a fire, set out by an engine operated upon defendant's railroad. There was a verdict and judgment for plaintiff. Defendant appeals.
REVERSED.
George E. Clark and M. B. Carey, for appellant.
No appearance for appellee.
I.
The defendant alleges in its answer that the fire which destroyed the hay and corn, for which the suit is brought, was set out by one of its engines, without any fault or negligence of its own, and that the loss of the property was the result of plaintiff's own negligence.
Evidence was introduced showing that the hay burned was in stacks, and plaintiff had constructed no protection against fire by plowing around them, or in any other manner. The plaintiff was permitted to prove against defendant's objection that there were other stacks of hay on the same tract of land, about forty rods distant, which were protected from fire by plowing around them, the protection thus made being described by the witness, and that these stacks were burned by the same fire that consumed plaintiff's property. The evidence, we think, was correctly admitted. The cause was tried upon the theory that plaintiff, if chargeable with contributory negligence, could not recover. The want of protection to the stacks was alleged to be negligence on plaintiff's part. Of course, under this view, plaintiff was required to do no more for the protection of the hay than would be demanded by reasonable prudence and care. If the stacks, around which furrows had been plowed, were protected in such a manner as reasonable care demanded, and were, nevertheless, burned this would have authorized the jury to find that the loss of plaintiff's hay was not attributable to his own negligence. If ordinary care would not have protected plaintiff from loss, he surely could not be chargeable with negligence for not doing what would have given him no protection. The jury were authorized to determine from the testimony whether the furrows plowed about the stacks were sufficient for the protection demanded by ordinary care. We are not to be understood as holding that the doctrine of contributory negligence is applicable to this case; the point we do not decide.
II. The defendant requested the court to require the jury to answer the following questions:
It was the right of the defendant to have the special findings...
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