Liming v. Ill. Cent. R. Co.

• Decision Date: 22 October 1890
• Parties: LIMING v. ILLINOIS CENT. R. CO.
• Court: Iowa Supreme Court

81 Iowa 246

47 N.W. 66

LIMING

v.ILLINOIS CENT. R. CO.

Supreme Court of Iowa.

Oct. 22, 1890.

Appeal from district court, O'Brien county; C. H. LEWIS, Judge.

Action to recover damages caused by a fire alleged to have been set out by defendant in operating its railway. A demurrer to the first count of the petition was sustained. Plaintiff, having elected to stand on his pleading, appeals from the ruling on the demurrer.Hughes & Hastings, for appellant.

J. F. Duncombe, for appellee.

ROBINSON, J.

The allegations of the petition which the demurrer admits to be true are substantially as follows: On the 30th day of November, 1888, William Ortman owned, and with plaintiff and his family occupied, a certain farm in O'Brien county. Ortman owned some horses, which were kept in a barn on the farm, and plaintiff owned some hogs, which were kept in a pen outside the barn. On the day named, an engine on the railway of defendant set fire to grass and weeds on its right of way at a point opposite the premises of Ortman. A high wind was blowing at the time, which spread the fire rapidly, driving it in the direction of the barn. Plaintiff and Ortman saw the fire immediately after it started, and went to it, and tried to put it out. Failing in that, they retreated to a traveled way which crossed the prairie between the fire and the barn, and attempted to stop the fire by sprinkling water on the grass. Their efforts were ineffectual, and they then started to save the horses and hogs. They first entered the barn, the plaintiff believing that there would be ample time in which to remove the horses before the fire, which was more than 100 feet away, could reach the building. Prior to that time the head fire had been running towards a point at one side of the barn, but at that time it reached higher ground, and, catching the full force of the wind, was driven directly towards the barn. When the horses were unfastened, and were being taken from the barn, plaintiff discovered that the fire had reached the door which afforded the only means of escape, and that, in order to escape, he was compelled to and did pass through the fire; that in doing so both his legs, his right hip, both hands, and his right elbow were badly burned, his face was badly burned and disfigured, and his eyes injured. By reason of the injuries so received, plaintiff was confined to his bed nine weeks, and suffered greatly in mind and body, and his health has been seriously and permanently impaired. The first count of the petition also alleges that the fire was caused by negligence on the part of defendant, and that plaintiff was free from negligence. The demurrer is as follows: “Defendant demurs to the first count of plaintiff's petition for the following reasons: (1) The allegations set out in the first count for personal injury to plaintiff do not show that the negligence of defendant was the proximate cause of the injury complained of. (2) The said count shows that the injury complained of was received by plaintiff while he was engaged in trying to save the property of one Ortman, and that said injury was not directly or approximately caused or contributed to by the negligence of defendant.”

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 is admitted that the damages in question were caused by a fire which the defendant set out in operating its railway, but it is said that the fire was not the proximate cause of the injuries sustained by plaintiff. It is further said that but for the intervention of his own voluntary act he would have sustained no injury, and therefore that his own act was the proximate cause of his injuries. The question presented for our determination is not free from difficulty. Defendant is not liable unless its wrongful act was the proximate cause of the damages in suit. A careful writer has said: “The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred.” 1 Shear. & R. Neg. § 26. Also: “A person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would have thought at the time of the negligent act reasonably possible to follow, if they had been suggested to his mind.” Id. § 29. In Railway Co. v. Kellogg, 94 U. S. 469, it is said: “The question always is, was there an unbroken connection between the wrongful act and the injury,--a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?”...