W. v. Chi. & N. W. Ry. Co.

• Decision Date: 13 December 1887
• Citation: 77 Iowa 654,35 N.W. 479
• Court: Iowa Supreme Court
• Parties: WEST v. CHICAGO & N. W. RY. CO.

77 Iowa 654

35 N.W. 479

WEST

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

Supreme Court of Iowa.

December 13, 1887.

Appeal from district court, Cedar county.

Action by Eli H. West to recover for damages sustained by a fire alleged to have been set out by the defendant in the operation of its road. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.Hubbard, Clark & Dawley, for appellant.

Piatt & Carr and Charles E. Wheeler, for appellee.

ADAMS, C. J.

1. The court gave an instruction in these words: “You will determine from the evidence whether the defendant permitted such an accumulation of dry grass and weeds and other combustible matter within their right of way, exposed to ignition by their engines, as would be permitted or done by an ordinarily prudent man upon his own premises, if exposed to the same hazard from fire as an accumulation of dry grass and weeds upon the right of way of the defendant. If you find that the defendant in this respect acted as an ordinarily careful and prudent man would have done under the same circumstances, then it is not in law guilty of negligence in thus acting. But if the evidence fully satisfies you that the defendant did in fact permit such an accumulation of combustible matter, as above mentioned, upon its right of way, as would not have been permitted by an ordinarily prudent man upon his own premises, if exposed to the same hazard from fire escaped from an engine operated by the defendant setting fire to the accumulated grass and weeds within the right of way of the defendant's road, in consequence of which the plaintiff's property was destroyed, then the defendant is liable.” The defendant assigns the giving of this instruction as error. It is insisted that there is no evidence that the fire started in the right of way, and no evidence even that there was combustible material there. We think that the testimony of Jasper West and Rosa West tended to show the fire started in the right of way. The former said: “When I got there it was half way between the track and the fence.” It is true that he said that when he first saw it he could not tell where it was; but he was not at the right of way when he first saw the fire, but afterwards went there. Now, if the fire caught in the right of way, that fact of itself would be some evidence that there was combustible material there.

One other question may be disposed of in connection with the instruction above set out, though the question is raised under an instruction asked by the defendant, and refused. The property burned consisted of stacks of hay. The plaintiff had not plowed around them, and the defendant averred that he was guilty of negligence in not so doing. The evidence was such that we think that the jury might have so found. The instruction above set out made the defendant liable, if negligent, regardless of the question of the plaintiff's negligence. We have, then, the question as to whether, in a case of this kind, arising under the statute, (Code, § 1289,) the defendant can escape liability for its own negligence, if it appears that the plaintiff was negligent also, and that his negligence contributed to the loss. The defendant contends that it can. It may be conceded that, prior to the statute, contributory negligence on the part of the plaintiff in a case like this would defeat his recovery. Kesee v. Railway Co., 30 Iowa, 78. But the statute, we think, changes the rule. It is doubtful, indeed, whether even at common law the preponderance of authority is not against the ruling in the case above cited; but it is not material to inquire whether this is so or not. The statute, we think, was designed to settle a vexed question upon which the courts had been divided. The language used is clear. In construing the statute in Small v. Railroad Co., 50 Iowa, 338, a minority of the court thought that the company could not escape liability in any way, not even by showing itself free from negligence, and that the loss was due wholly to the negligence of the plaintiff. We are now asked to go an important step further than the majority went in that case. In our opinion, we should not be justified in doing so. It is claimed that language was used by way of...