Babcock v. Chicago & Northwestern R'y Co. ( 1886 )

Rothrock, J.

This cause has once been before this court upon an appeal from a judgment against the defendant. See 62 Iowa, 593. The judgment was reversed upon a question not presented in the present appeal. It is unnecessary to repeat the facts of the case. A reference to the opinion on the former appeal is sufficient; and we do not deem it necessary to again discuss the question whether or not the evidence was sufficient to warrant the jury in finding that the engine, which, it is claimed set out the fire, was defective in its spark-arrester and other appliances to prevent the escape of fire. The evidence up>on that question is substantially the same as on the former appeal; and we then held in the original opinion, and in the opinion on rehearing, that there ought to be no reversal on this ground; and we think the judgment ought not to be disturbed upon thé question as to the negligence of the plaintiffs in allowing dry grass and stubble to remain upon their land, and thereby contributing to the injury. In our opinion, the jury were warranted in finding that the plaintiffs were not chargeable with negligence in this respect.

i. pka-ctice seconSap-sivenesso?lu ruling on first appeal. Upon an examination of the record in both appeals, we desire to add nothing to what we have already said, except upon the question as to the care with which the engineer operated his engine and train. In the opinion upon the former appeal it was stated, in . substance, that, it the fire was set out by the cinders referred to by the plaintiff Thompson in his testimony, the jury was authorized to find from the evidence that the engine was not in good order, or that it was not skillfully managed; and in the opinion on the rehearing, in answer to the argument of defendant’s counsel to the effect that there was no conflict in the evidence that the engine was properly and carefully managed, it was conceded that all the direct evidence was on the defendant’s side of that question, but it was held that there was upon the side of the plaintiffs the prima facie evidence of negligence which the law itself presumes against the defendant, and that there were contradictory circumstances on the side of the plaintiffs. We then said that “ the fire, under the law, is evidence of defendant’s negligence. The good condition of the engine, the diligence of defendant’s employes, and other facts, all are evidence of defendant’s care. Here is conflicting evidence, which must be determined by the jury.”

The same may be said of the present appeal. The court, in its instructions to the j ury, enumerated the care with which the engine was managed, as a fact for the consideration of the jury. It is true that, in answer to the question whether he was running the engine with the care with which engines ought to be run, the engineer t^tified that he was, according to the grade he had to go up, and the train attached to the engine. Now, if this should be conceded, and if it should also be conceded that the affirmative evidence shows, without conflict, that the engine was in perfect order, we held in the opinion on rehearing that it was a question for the jury to determine whether the presumption of negligence was overcome by the affirmative evidence in the case; that there was a conflict between the presumption and the evidence introduced to rebut it, which was proper to submit to the jury. Whether in this holding we are right or wrong, we feel compelled to adhere to it, for the reason that this is the second appeal of the same case, of substantially the same facts, and the rule announced upon the former appeal must be regarded as the law of the case, which should be adhered to as applicable to this case. Adams Co. v. Burlington do M. R. R. Co., 55 Iowa, 91.