77 Iowa 654 | Iowa | 1887
Lead Opinion
I. 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 its 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 that 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 hev 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.
It is further urged as an objection to the instruction that it assumes that the jury might find that there were several successive fires set out by the engine on that trip, whereas it is said that there were only two, and that two is not several. It may be conceded that ‘ ‘several” means more than “two;” but we think that the evidence showed that there were two besides the one which did the injury, and it is claimed by the plaintiff that there was evidence tending to show that there were more than that.
It is further urged as an objection to the instruction that the court had no right to single out this evidence, and instruct upon it, and give it additional emphasis by so doing. But we cannot reverse because the court told the jury that they should regard as evidence what
Affirmed.
Rehearing
Opinion on Rehearing.
I. A rehearing was granted in this case upon the petition of defendant. The question upon which we desired further argument is whether the rule of contributory negligence is applicable to cases wherein railroad companies are liable under the statutes for fires set out in the operation of their railroads. Upon the other questions in the case we had no doubt, and did not order the rehearing to gain more light upon them. We need not further discuss them. The foregoing opinion is criticised for the course of its argument, rather than assailed because of its conclusions. What is said as to the purpose of the statute “to settle a vexed question upon which the courts had been divided” may or may not be accurate. But it is very true that the statute was intended to prescribe a rule of law. Whether there had been contests as to the prior rules recognized by the courts will not determine the construction of the statute. The statute imposes an absolute liability upon railroad corporations, without regard to their negligence, or the contributory negligence of the person injured. This court has no right to interpolate words in the statute which limit that liability to cases wherein the injured person does not contribute to the injury by his own negligence. Surely, the language of the statute, without interpretation, will admit of no such construction. But it is said that this court has held in Small v. Railway Co., 50 Iowa, 338, that the railroad company is
It cannot be said that the doctrine of contributory negligence is founded upon the rule that one wrong-doer cannot recover of another engaged with him in the commission of the wrong for injuries resulting therefrom. It cannot be said that defendant and plaintiff, both being negligent, united in the commission of the wrong. The defendant’s negligence was positive, — active. The plaintiff’s was negative, and consisted in a failure to exercise due care to prevent injuries from defendant’s negligence. The reasons demanding the rule recognized in Small v. Railway Co. do not demand that the rule of contributory negligence be extended to this case. In our opinion the cases cited by counsel for defendant do not support his contention that the doctrine of contributory negligence should be applied in this case. We adhere to the foregoing opinion.
Affirmed.