Miller v. The Chicago, Milwaukee & St. Paul Railway Company

• Decision Date: 21 December 1888
• Citation: 41 N.W. 28,76 Iowa 318
• Parties: MILLER v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY
• Court: Iowa Supreme Court

41 N.W. 28

76 Iowa 318

MILLER v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

December 21, 1888

Decided October, 1888.

Appeal from Carroll District Court.--HON. J. H. MACOMBER, Judge.

ACTION to recover damages on account of grain, grass, etc., burned on plaintiff's land by a fire set out from an engine operated upon defendant's railroad. There was a judgment on a verdict for plaintiff. Defendant appeals.

REVERSED.

T. J Garrison and Shortley & Cardell, for appellant.

Geo. W Paine, for appellee.

OPINION

BECK J.

I.

The court below permitted plaintiff to introduce evidence tending to prove that plaintiff stacked his grain at a place, and in a manner, which would have been approved by the practice of a cautious and prudent farmer. The case was tried upon the theory that plaintiff cannot recover if he is shown to be guilty of contributory negligence. Plaintiff insists that, as the rule of contributory negligence has been held by this court, in West v. Railway Co., 77 Iowa 654, 35 N.W. 479, not to apply to cases for setting out fire of the character of this case, the admission of the evidence, if erroneous, was without prejudice; for the reason that the negligence of the plaintiff, if established, would not defeat his recovery. The case of West v. Railway Co., is pending upon a rehearing in this court, ^[*] and the doctrine in question if before us for re-consideration. We do not, for these reasons, pass upon the question presented in this branch of the case.

II. The jury were directed in the tenth instruction that, if they found "the fire was caused through the negligence of the defendant in the construction or management of the engine concerning the prevention of escaping coals and sparks, and without the negligence of the plaintiff contributing to the loss, they should allow the plaintiff such damages," etc. The petition does not allege that defendant was negligent as to the construction of the engine, nor is it alleged that the engine was negligently or improperly constructed. The instruction directs the consideration of a matter, in order to determine defendant's liability which was not pleaded in the petition. No rule is more familiar than that one which requires a case to be tried on the issues made in the pleadings, and will not permit matters to be considered in order to fix liability on a defendant which are not pleaded against him. This...