148 Iowa 556 | Iowa | 1910
In 1907 the plaintiffs, as partners, were engaged in farming a large tract of land, and they were damaged by water which passed onto a part of said land through a break in the west levee of the Pony Creek ditch. The Chicago, Burlington & Quincy Bailroad Company is the owner of a north and south road that crosses the ditch in question on a steel girder bridge about sixty-six feet in length; the distance between the banks of the ditch at that point being fifty feet or more. The steel girders are about six and one-half feet wide, and at the time in question they extended below the top of the ditch levees from two to three feet. Where the defendants’ road crosses it, the ditch is constructed practically east and west, but about a half a mile east of said point the ditch curves and runs almost directly .north for some distance. In the evening of the 14th of July, 1907, there was a rainfall of three or three and one-half inches in that locality. The water filled the ditch so full that it overflowed the levees on both sides in many places, and broke through the west levee just north of the curve in the ditch of which we have spoken, doing the damage for which plaintiffs ask a recovery. . The plaintiffs claim that the break in the levee was caused by the defendants’ obstruction of the ditch with its bridge.
As we have heretofore said, it was the duty of the owner of the road to construct and maintain bridges that would not obstruct the passage of water, either in a natural water course, or in a ditch authorized by law. The question then arises whether the leasing of the road, its properties, and its operation, relieves the owning company from liability for the faulty construction of bridges by its lessees, or from liability for the negligent maintenance of the same.
The appellant railroad company contends that since the statute (section 2066) authorized the lease of its road it is not liable for the negligent act of its lessee. But with this contention we can not agree. An early case deciding the question before us is Washington, Alexandria & Georgetown Railroad Company v. Catherine Brown, 17 Wall. 445 (21 L. Ed. 675), wherein Mr. Justice Davis, speaking for /the court, said: “It is the accepted doctrine in this country that a railroad corporation can not escape the performance of any duty or obligation imposed by its charter or the general laws of the state by a voluntary surrender of its road into the hands of lessees. . . . The operation of the road by the lessees does not change the relations of the original company to the public.” This rule seems to obtain generally in this country. See cases cited in
Instructions six, seven, eight, and nine are not, in our judgment, so misleading and inconsistent as to warrant criticism. We think they presented material issues in a plain and concise manner.
Plaintiffs were permitted to amend before verdict increasing the amount of their claim. There was no error in the ruling. Nor was there error in not requiring the plaintiffs to elect which of the defendants they would pursue, nor in overruling the railroad company’s motion to dismiss. Both of these points are covered by the first division of this opinion.
The judgment is therefore affirmed.