Connors v. Chicago & Northwestern Railway Co.
82 N.W. 953
Iowa
1900
Check Treatment
Ladd, J.

Thе fire which destroyed the plaintiff’s hay and injured his slo-ugh originated from a fire set out by the defendant’s seetionmen in burning thе grass and weeds along its right of way,.or else from a sinder pile dumped from a thresher engine previously operated on the premises. In either event, recovery could only be had from the party at fault on аn affirmative showing of negligence. This is conceded, unless it may be said that the fire was “set out or caused by operating” the defendant’s railway. See Gandy v. Railroad Co., 30 Iowa, 420. If so done, then, under section 1289 of the Code of 1873, the burden of proof was ‍‌‌​‌​​​​‌‌​‌​​‌​‌‌‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌​​​​‌‌‌‌​​‌‍upon the defendant to show the exercise of care oil the part of its employes. Small v. Railway Co., 50 Iowa, 338; Rose v. Railway Co., 72 Iowa, 625; Engle v. Railway Co., 77 Iowa, 666; Metzgar v. Railway Co., 76 Iowa, 387. The important inquiry, then, is, what is meant by “operating a railway?” In none of the cases heretofore determined has. the application of the statute gone beyond a fire set out or caused by an engine on thе track. But under the co-employes’ act (Code, section 2071), allowing recovery by an employe injurеd by negligence “in any manner connected with the use and operation of any railway on: or about which they shall be em*386ployed,” the clause “use and operation of any railway” ‍‌‌​‌​​​​‌‌​‌​​‌​‌‌‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌​​​​‌‌‌‌​​‌‍has been frequently cоnsidered and defined. Thus, in Stroble v. Railway Co., 70 Iowa, 560, the court, through Beck, J., said: “What is the use and operation of a railway? It is constructed for the sole purpose of the movement of trains. That is its sole use. What is the operation of a railway ? They can be operated in no other way than by the movement of trains.” In Nelson v. Railway Co., 73 Iowa, 576, the movement of steam ditching machines, and in Lartson v. Railway Co., 91 Iowa, 81, that of a hand car, werе held ‍‌‌​‌​​​​‌‌​‌​​‌​‌‌‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌​​​​‌‌‌‌​​‌‍to be operating a railway. In Akeson v. Railway Co., 106 Iowa, 64, after reviewing the authorities, the court concluded that: “The only dangers peculiar to railroading are- those occasioned by the movement of the engines, cаrs, and machinery on the track, or directly connected therewith. It is evident that the statute contemplаtes such injuries only as are caused by the negligent acts of employes so engaged. In no other prоper sense is a railway used and operated. * * * If, then, the injury is received by the employe whose work еxposes him to the hazards of moving trains, cars, engines, or machinery on the track, and is caused by the negligеnce of a co-employe in the actual movement thereof, or in any .manner directly connected therewith, the statute applies, and recovery may be had. Beyond this the statute affords no prоtection.” Appellee relies somewhat on the language employed in Haden v. Railway Co., 92 Iowa, 229. There the employе whose negligence caused the injury was conceded to be engaged in the use and operation of a railroad, as it was occasioned by the movement of a'train in his charge. The inquiry made in the second paragraph of that opinion related to the exposure of plaintiff to the peculiаr hazards of railroading, ‍‌‌​‌​​​​‌‌​‌​​‌​‌‌‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌​​​​‌‌‌‌​​‌‍and what was said must be construed with reference to that subject. Haden was held to have been so exposed, and, having been found to belong to this class, it was quite immaterial whether he was аlso connected with the use and operation of the road. It may be remarked, however, that an employe, “in keeping in *387repair the track of a railroad for the present operation of its trаins,” while he may be exposed to the hazards, is not engaged “in the business of operating a railroad.” Such wоrk is undoubtedly necessary therefor, but not in any way connected therewith. We are content with the conclusion reached in Akeson's Case — that a railroad is only operated, within the meaning of the law, by “moving trains, cars, engines, or machinery on the track.” The same definition is peculiarly applicable to the clause “operating any such railway,” contained in the statute relating to fires. Locomotives, trains, or machinеry passing along the tracks are entirely within the control of the company, and are usually beyond eаsy reach before the damages caused by escaping sparks or fire can be known. To obviate the all but insurmountable obstacles in the way of the injured party adducing affirmative proof of its negligence in order to recover, this statute, casting the burden of proving care on the railway, was enacted. It is limited to a situation, however, peculiar to railroads (i. e. their operation) ; otherwise, it might fall beneath the denunciation ‍‌‌​‌​​​​‌‌​‌​​‌​‌‌‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌​​​​‌‌‌‌​​‌‍of the constitution, as class legislation. Nor discrimination by the legislature must rest upon somе apparent natural reason, “suggested by a difference in situation and circumstances of the subjeсts placed in different classes, as suggests the necessity er propriety of different legislation with respеct to them.” The evidence is quite as available in the case of a fire set out by the sectionmen оn the right of way as when started by a neighboring farmer or other person, and we can think of no reason for applying a rule in the one case which does not obtain with equal propriety in the other. See 3 Elliott, Railroads, section 1242. It follows that the court erred in directing the jury that, if the damages were caused by fire set оut by defendant’s sectionmen on the right of way, the plaintiff had made a prima facie ease, and that thereupon the burden was on the defendant to show its freedom from negligence in allowing the fire to escape, and in failing to put it out. — Reversed.