60 Iowa 215 | Iowa | 1882
A rehearing having been granted on the petition of the defendant, we will proceed to a consideration, as far as deemed necessary, of the matters to which our attention has been called by counsel.
“9. If from the evidence the jury find that defendant’s engine set out the fire alleged, and also that the same engine set out several successive fires on the same trip, and in the same day, then the fact of the repeated setting out of such fires will be evidence tending to show that the defendant’s engine was not properly constructed as to its appliances for prevention of escape of fire, or that the same was not propei’ly used at the time, or that it was not in repair, and as such must be considered by you in making up your verdict, and in determining as to whether or not this fire occurred through the fault or negligence of defendant or its employes.”
(Modified by adding): “Provided that it further appears that engines generally and ordinarily do not set out fires in this manner.”
It is urged that this instruction is erroneous because: “First — The uncontradicted evidence of R. 'W. Bushnell, defendant’s master mechanic, a competent expert on this subject, testified that there is no method or appliance known to prevent the escape of sparks from locomotives. Second— That this locomotive was at the time in perfect condition and order in every particular, and, Third — There was not a word of evidence upon the trial to show that locomotives in good order do not ordinarily set out fire, and hence the instruction was without evidence to support it.”
The instruction, in our opinion, should have been given as asked. Conceding that the evidence tended to show what is claimed, still it was competent for the plaintiff to introduce evidence contradictory thereto. It was not essential that this evidence should be the testimony of persons who had examined the engine and gave evidence tending to show it was
“ 7. If defendant has proved to you that the locomotive, which it is claimed set out this fire, was equipped with the latest and most improved means then known to arrest the escape of fire and sparks, and that such locomotive was in good order and operated by competent men, and this evidence is not contradicted by any witness, and that, notwithstanding this, the sparks escaped, and owing to the dryness of the season fire was communicated to tlie stacks and they were burnt, then, under the law, it is your duty to return a verdict into the court for the defendant.”
(Modified by adding): “Provided that the defendant’s witnesses are not contradicted by other evidence and circumstan
The instruction as asked does not state the law correctly, and therefore should have been refused.. The rule of the instruction as asked is, if the defendant has proved the locomotive was in good condition, and “this evidence is not contradicted by any witness,” the jury must find for the defendant. The jury would necessarily understand from the italicized words that, if the plaintiff had not introduced any witness who testified that the engine was not properly constructed, or was not in good repair, then there was no evidence contradictory to that inti’oduced by the defendant, which should be considered by them. But, as has been said, the l’epeated setting out of fires is evidence tending to show that the engine was not in pi’oper condition, and it was for the jury to say whether the defendant, by a preponderance of the evidence, had shown that the engine was in good order and condition. Instead of refusing the instruction, the court gave it with the modification, and it is of the latter that the defendant complains. The serious objection made is to that portion which makes the instruction depend on whether the jury believed that “plaintiff’s witnesses were truthful.” There is nothing in the record which warrants this remark. Of course it was for the jury to say whether the proposition stated in the instruction had been established by the evidence, and the court could well have so said to'them. But we sei’iously doubt whether the court should have said to the jury that the proposition embraced in the instruction depended on the truthfulness of defendant’s witnesses.
“10. If from the evidence the jury find that the plaintiff stacked his wheat in the field where it was grown, which field was adjacent to the railroad, and at the time of the alleged fire he had not plowed around the same, such acts would not constitute negligence on the part of plaintiff, unless they were such acts as an ordinary, prudent and cautious man would not have done in like manner, under smiliar surrounding circumstances.”
When this case was before us at a former term, we were under the impression that the admission of the evidence aforesaid had not been assigned as error. In this assumption we were mistaken, as the sixth assignment sufficiently assigns as error the admission of said evidence, and the giving of the instruction aforesaid. The court erred in the admission of the evidence and, under the circumstances, in giving the instruction above set out. Ormond v. Central Iowa Ry Co., 58 Iowa, 742.
The fire was set out by the defendant, and it was operating the road, and is therefore liable under § § 1289 and 1300 of the Code. It is immaterial, under the statute, who owned the right of way.
There was evidence tending to show that the right of way is
Reversed.