Small v. C., R. I. & P. R.

Adams, J.

An opinion was filed in this case, in which the writer hereof concurred, affirming the judgment of the Circuit Court — Justices Seevers and Eothrock dissenting. Afterward a rehearing was granted, and the case has been reargued with the learning and ability commensurate with its importance.

i. bailkoads : llresfneg” gence. Tlie question presented is as to whether the defendant is absolutely liable, without regard to negligence, if the fire was set by sparks escaping from one of its'engines, or "whether its liability must be based upon negligence; the fact of the injury, however, if occurring as alleged, being prima facie evidence of negligence. The question is to be determined by the construction of a statute. The court below held, and so instructed the jury, that, under the statute, the liability was absolute.

At the time the statute was enacted the question had often been raised whether the fact of injury? by escape of sparks from a railroad locomotive should not be regarded as prima facie evidence of negligence at common law. In several of the States it was held that it should. The reason given for imposing upon the company the burden of proving that it has exercised due care is that the company knows or should know precisely what care it has exercised, and has the means of proving it. The person injured has not ordinarily the same knowledge nor means of proof. In this State, however, it was held that the burden was upon the plaintiff to establish negligence, and that, too, by evidence other than the mere fact of the injury by escape of sparks. ‘See Gandy v. The C. & N. W. R. Co., 30 Iowa, 420, and authorities collated upon both sides. Such, then, at the time the statute was enacted was the rule in this State.

*340 In the conflict of decisions other States had adopted by statute the rule which imposes upon the company the burden of proving care. It is contended by the appellant that our Legislature, influenced by the same considerations, has merely fallen into the general course of legislation upon this subject, and adopted the same rule. The position is plausible, at all events, and we-, state it as an introduction to our examination of the statute, which must show by its own terms, interpreted in the light of the considerations which are applicable, whether the Legislature designed to effect a more radical change.

Section 1289 of the Code provides for a liability for stock injured or killed by reason of a want of a fence where the company has a right to fence. It provides that where stock is injured or killed by reason of a want of such fence, the owner may recover by merely showing the injury or destruction of the property. It also contains a provision which is in these words: “Any corporation operating a railway shall be liable for all damages by fire that is set out or caused by operating of any such railway, and such damage may be recovered by the party damaged in the same manner as set forth in this section in regard to stock.”

The question as to whether this statute'creates an absolute liability, or only makes the fact of the injury prima facie evidence of negligence, has never been determined by this court. In Rodemacher v. The M. & St. P. R. Co., 41 Iowa, 297, it 1 seems to have been assumed that it creates an absolute liability ; but the only point decided was that the act is not unconstitutional. It is, of course, not unconstitutional if construed as the defendant contends for. The question as to whether it is susceptible of such construction is now presented for the first time.

The first clause of the provision might seem to create an absolute liability. It makes the company liable for all fires caused by the operating of its road. If this provision stood alone it would go far in'support of the plaintiff’s construction, *341 although it would not necessarily sustain it, as we will hereafter endeavor to show. But the provision is coupled with another providing for the manner of recovery, and this latter provision seems entirely superfluous, if an absolute liability is created by what precedes it. The party injured must, in any case, show an injury by escape of sparks or fire from the road. If the question of negligence is excluded no other-issue is tendered, and no other question can arise; the manner and the only manner of recovery would be by showing the single fact necessary in the very nature of the case. Now, if this is all, it seems incredible that the manner of recovery should be deemed to call for a specific provision.

But, in our opinion, this is not all. The provision is that a person may recover for injury by fire in the same manner as for injury to stock. The manner of recovering for injury to stock is by showing the injury by the company, and that it occurred by reason of a want of a fence. This makes a prima facie case of negligence, and the burden is devolved upon the company to show itself free from negligence. This it may do, but in order to do it it must show a freedom from negligence in the matter of a fence. If it were negligent in that, it would be liable without negligence iii other respects. But there must be negligence somewhere to make the company liable. Aylesworth v. The C., R. I. & P. R. Co., 30 Iowa, 459; Perry v. The D. S. W. R. Co., 36 Iowa, 102; McCormick v. The C., R. I. & P. R. Co., 41 Iowa, 195. This is the essential fact in the determination of this case.

It is contended, however, that it is not proper to say that the company may be guilty of negligence in not fencing, because the duty of fencing is not imposed upon the company by law. It is true that the company may omit to fence, and properly too, if it prefers to pay for all injuries to stock for which it is made liable by reason of a want of a fence. But where there is an omission to fence, and an injury occurs for which the company is made liable by reason of the omis *342 sion, it is scarcely ingenuous to say that the omission is not negligence.

If we are correct in the foregoing, then the manner of recovering for injury to stock, to which reference is made, pertains simply to the mode and measure of proof necessary to show a prima facie liability for such injury, and it follows that the design is to provide what is necessary to show a -prima facie liability for fires.

In this connection it is important to observe that the liability for injury to stock occurring by reason of a want of a fence should, according'to the strict letter of the statute, be absolute. But this court has held otherwise in the cases above cited. The letter has been made to yield to what is deemed the spirit of the statute, as not precluding the company from escaping liability if it can show that it'was without fault. In construing that part of the same section which provides for-liability for fires, we must recognize the same principle.

Indeed, in the latter case it is hardly necessary, as in the former, to override the letter of the statute. The language is: “The company shall be liable for all damages by fire that is set out or caused by the operating of its railway. ” To hold that an absolute liability has been created by the statute we must take the word caused to include its use in the remotest possible sense. If a locomotive is overturned by a tornado, and the fire scattered abroad from which fires are set out, the fires, it is true, may be said to be caused by the operating of the road, but only in the sense that they would not otherwise have occurred. Sparks escaping from an ordinary chimney, used in the ordinary way, might be carried by a strong wind to a building in the neighborhood, and if they lodged in material sufficiently combustible a fire might be set out. In such case the fire might be said to be caused by the operating of the chimney, but only in the same remote sense.

Where the person using the chimney was without fault, we should say ordinarily that the fire was caused simply by the *343 wind and sparks. If, in the ordinary use of- a locomotive, sparks escape without any fault on the part of the company, and are carried by the wind to combustible material outside of the company’s right of way, and a fire is set out from them, the setting out of the fire is not caused by the operating of the road in any different sense from that in the case of the chimney. It is true the operating of the road is more dangerous, but it is not less legitimate; and this is the essential fact so far as this question is concerned. Railroads are not only expressly sanctioned by law, but they have become an important factor in modern civilization. The whole business of the country has crystallized about them. When railroad companies, under the law, have taken and paid for their right of way, they have the same right to use it that any person has to use his property.If in the legitimate use an injury occurs, without any fault in the mode of use, and simply by the intervention of an uncontrollable element of nature, we are to refer the cause to the element and not to the use.

But it is said that where a person for pecuniary profit pursues a business that is necessarily dangerous to others, he may properly be required to indemnify against the danger, or pay for the injuries which occur.

The principle thus broadly stated has never been recognized. The proximity of a planing-mill is more dangerous than that of a railroad. The ordinary life of such property, as estimated by insurers, is but about ten years. Many pursuits, not dangerous, are obnoxious, wherein the same principle applies. The rule is that if the pursuit is not a nuisance, in view of its character or time and place in which it is carried on, and there is no lack of care or skill, persons suffering therefrom are without remedy. It is possible that the rule may work a hardship in some of its applications; but in case of exposure to fire by railroads no hardship exists where the land-owner is compensated for the exposure.

Where compensation is made the parties may be considered as contracting upon good consideration that the risk shall *344 be carried by the land-owner and not the company, and in such case it may well be doubted whether it would be competent for the Legislature to contravene the contract by providing that the risk should be carried by the company and not the land-owner. We come, then, to a material inquiry as to whether the compensation is embraced in right-of-way damages. That it is, we think the law is well settled.

The exposure which exists in the absence of negligence results necessarily from the operating of the road. It is a necessary element of depreciation. It is true the exposure is rather a consequential than direct injury, but it is not the less to be estimated and paid for by reason of such fact. In Evansville & Crawfordsville R. Co. v. Dick, 9 Ind., 433, the court said: “The Legislature cannot authorize either a direct or consequent injury to property without compensation.” In Sabin v. V. Cent. R. Co., 25 Vt., 363, the question arose as to whether the land-owner could recover for damages sustained by pieces of rock being thrown upon his land by blasting, in the construction of the road — the work being done with proper care and skill. It was held that he could not, because he must be presumed to have been paid when the right of way was taken. The court said: “The plaintiff had a right to claim, and was of course bound to present his claim, for all damages he was likely to sustain, not only in the running of the road by fires of engines and the like, but by the building of the road by the ordinary mode.”

In Rood v. N. Y. & Erie R. Co., 18 Barb., 80, an action was brought to recover for an injury by fire set out by the company to an adjacent wood. The plaintiff had sold and conveyed by deed a right of way to the company out of land of which the wood constituted a part. It was held that the plaintiff could not recover. The court said: “The grantor having conveyed a certain parcel of land for the purpose of a railroad out of a much larger parcel retained by him, the grant is subject to all the consequences necessarily *345 attendant upon sueb. a use of the same, and particularly such as would result from the running of engines and _ the consequent exposure pf property on his adjacent land to such injury and loss as would naturally result therefrom.”

In Webber v. Eastern R. Co., 2 Met., 149, which was a proceeding for assessment of damages for right of way, it was held to be proper to show by an expert that the premium for insurance on a building standing upon the remaining part of the premises would be increased by the proximity of the road.

In Snyder v. W. U. R. Co., 25 Wis., 60, which was also a proceeding for assessment of damages for right of way, witnesses called to estimate the damages were allowed to consider the exposure of the remaining part of the premises to fire.

In Kucheman & Hinke v. The C., C. & D. R. Co., 46 Iowa, 366, the question rose directly as to whether consequential damages were allowable, as for diversion of trade. It was held that they were. The court said: “We are of the opinion that the damages are not limited to the value of the land taken, but include such damages as result proximately from the use for which it is taken.” Exposure to fire, so far as it is unavoidable, most certainly results proximately from the use of the road. The exposure, then, is a part of the injury for which right-of-way damages are allowed, and it is presumed to be paid for when such damages are paid.

A provision by the Legislature that notwithstanding such qjayment the company, and not the land-owner, should sustain whatever loss occurs, if not unconstitutional, would be manifestly unjust; and we are not to put a construction upon a statute which would manifestly effectuate injustice if it is susceptible of a different construction.

It may be that the land on which the plaintiff’s elevator was erected was not part of a tract from which the right of way was taken. If so, it cannot be said that the owner of that land was compensated for the exposure under considera *346 tion. But that would not materially affect the argument. The language of the statute is general, and must have a general operation. If the railroad company is made insurer against any risk of this nature, it is made, according to the terms of the statute, insurer against all risks of the same nature, including those for which it has paid the land-owner in advance.

Where a statute is of doubtful construction it is proper to give some weight to what might be considered as demanded or forbidden by the public interest. This consideration, so far as it is entitled to any influence in this case, is unfavorable to the construction contended for by the plaintiff. The statute, as construed by him, is designed to afford an indemnity against carelessness as well as pure accidents. Railroad companies cannot control the erection of buildings or the' accumulation of combustibles outside of the one hundred feet held for right of way. Cities grow up upon a railroad and because of it, built, in the absence of ordinances, precisely as the owner of each building sees fit to build it. Under the ruling in M. & St. P. R. Co. v. Kellogg, 4 Otto, 469, and under the construction-of the statute in question contended for by the plaintiff, a railroad company may be held liable for the destruction of a whole city, occurring without the company’s fault. It may be held where such accident would not' have occurred but for the improper construction of buildings or the want of suitable means for extinguishing fires. Insurance companies require that the insured shall carry a part of the risk. Long experience has shown this to be necessary. But it is scarcely more necessary for the protection of insurance companies than the public. The statute in question, under the construction contended for by the plaintiff, is designed to afford complete indemnity, and it would prove such, perhaps, in small fires, but probably not in large ones.

It is urged that the statute, construed. as the plaintiff contends for, would have the effect to secure a higher degree of care on the part of railroad companies; but this is *347 not so. There is no higher degree of care than faultlessness. For negligence railroad companies are liable without the statute. The only effect,' so far as their action is concerned, of imposing upon them the liability in question would be to compel them to increase their charges. It would only make railroads more expensive things to own and operate, and more expensive means of transportation and travel. The burden would fall upon the community at large. The cost of railroads even now consists in part of the right-of-way damages, which, as we have seen, include compensation for the exposure created by them. This, like any other element of cost, enhances their expensiveness as means of transportation and travel. Why in addition to this, and as a part of the expense of operating them, the patrons shpuld be" burdened with paying for burned elevators erected by their owners within what they knew, or should have known, was dangerous proximity to the road, or for burned stacks of hay and grain which could have been protected by plowing a few furrows of ground, we are unable to see.

We are aware that there has been a conflict in the decisions upon the question whether at common law, in case.where property has been destroyed by fire set out by a railroad company through'its fault, the company could escape liability upon the ground that the owner of the property contributed, by his own negligence, to the loss. It does not come within our purpose to collate and compare the decisions. It is sufficient to say that it is the doctrine of this court that contributory negligence will defeat a recovery in such case. Kesee v. The Chicago & N. W. R. Co., 30 Iowa, 78. In that case it was held that the plaintiff could not recover for stacks of grain burned if he was guilty of negligence in not plowing around them, notwithstanding the company might have been negligent. The decision does not appear to have been controlled by what was regarded as the weight of authority. That, indeed, could hardly have been claimed. It is based, apparently, upon what the court deemed to be natural justice. Now if it *348 is right upon principle that contributory negligence should defeat a recovery where the company is in fault, it is an outrage that contributory negligence should not defeat a recovery where the company is not in fault. Yet it would not if the statute creates an absolute liability.

Stacks of grain are built in close proximity to a railroad at a dry season of the year. They are surrounded by dead grass, stubble, and other combustible material. The railroad company, we will suppose, connot wholly prevent the escape of sparks. Safety to the stacks is to be secured by removing them or plowing around them; yet the company can do neither. It has no reliance but the prudence of the owner; and yet the statute, if construed as contended for, has deprived hi in of all motive to be prudent by making the company his insurer to the full value of the stacks. This does not prove, of course, that the Legislature has not perpetrated the outrage in question, but the language used is not such as to induce us to believe it has.

An attempt has been made to evade the necessity of construing the statute by saying that, as a matter of fact, the escape of sparks can be prevented, notwithstanding the testimony to the contrary. Something is urged upon our attention in regard to the possibilities of science. Cases are cited wherein it appears that judges have indulged in this most uncertain of human speculations. We refrain from so doing. We regard it as sufficient if railroad companies employ the best known means and methods. What lies beyond the known it is not the province of courts or juries to consider.

In supposing that the case called for a construction of the statute we think the court below was right, but in construing it as creating an absolute liability, without regard to the negligence of the company, we think the court erred.

Reversed.