Liming v. Illinois Central Railroad , 81 Iowa 246 ( 1890 )

Robinson, J.

The allegations of the petition which the demurrer admits to be true are substantially as follows: On the third day of November, 1888, William Ortman owned, and with plaintiff and his family occupied, a certain farm in O’Brien county. Ortman owned some horses, which were kept in a barn on the farm, and plaintiff owned some hogs, which were kept in a pen outside the barn. On the day named, an engine on the railway of defendant set fire to grass and weeds on its right of way at a point opposite the premises of Ortman. A high wind was blowing at the time, which spread the fire rapidly, driving it in the direction of the barn. Plaintiff and Ortman saw the fire immediately after it started, and went to it, and tried to put it out.. Failing in that, they retreated to a traveled way which crossed the prairie between the fire and the barn, and attempted to stop the fire by sprinkling water on the grass. Their efforts were ineffectual, and they then started to save the horses and hogs. They first entered the barn, the plaintiff believing that there would be ample time in which to remove the horses before the fire, which was more than one hundred feet away, could reach the building. Prior to that time the head fire had been running towards a point at one side of the barn, but at that time it reached higher ground, and, catching the full force of the wind, was driven directly towards the barn. When the horses were unfastened, and were being taken from the barn, plaintiff discovered that the fire had reached the door which afforded the only means of escape, and that, in order to escape, he was compelled to and did pass through the fire; that in doing so both his legs, his right hip, both hands, and his right elbow were badly burned, his face was badly burned and disfigured, and his eyes injured. By reason of the injuries so received, plaintiff was confined to his bed nine weeks, and suffered greatly in mind and body, and his health has been seriously and permanently impaired. The first count of the petition also alleges that the fire was caused by negligence on the part of defendant, and that plaintiff was free from negligence. The demurrer is as follows: “ Defendant demurs to the first count of plaintiff’s petition for the following reasons: First. The allegations set out in the first count for personal injury to plaintiff do not show that the negligence of defendant was the proximate cause of the injury complained of. Second. The said count shows that the injury complained of was received by plaintiff while he was engaged in trying to save the property of one Ortman, and that said injury was not directly or approximately caused or contributed to by the negligence of defendant. ’ ’

Section 1289 of the Code provides that “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.” It is admitted that the damages in question were caused by a fire which the defendant set out in operating its railway, but it is said that the fire was not the proximate cause of the injuries sustained by plaintiff. It is further said that but for the intervention of his own voluntary act he would have sustained no injury, and, therefore, that his own act was the proximate cause of his injuries.

The question presented for our determination is not free from difficulty. Defendant is not liable unless its wrongful act was the proximate cause of the damages in suit. A careful writer has said: ‘ ‘ The proximate cause of an event must be understood to be that which., in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred.” 1 Shear. & Red. Neg., sec. 26. Also: “A person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would have thought at the time of the negligent act reasonably possible to follow, if they had been suggested to his mind.” 1 Shear. & Red. Neg., sec. 29. In Railway Co. v. Kellogg, 94 U. S. 469 [24 L. Co-op. Ed. 259] it is said: “The question always is, was there an unbroken connection between the wrongful act and the injury, — a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?” See, also, 1 Suth. Dam. 47; Brown v. Chi., Mil. & St. Paul Ry. Co., 54 Wis. 342; 11 N. W Rep. 356, 911; Lowery v. Railway Co., 99 N. Y. 158; Knapp v. Sioux City & Pac. Ry. Co., 65 Iowa, 91.

But it often happens that the wrongful act or negligence of a party would be harmless but for the voluntary act of the person injured, as in cases of injuries from defects in streets, sidewalks, roads and bridges; yet in a case of that kind the act of the person injured in traveling the defective way is not regarded as a new or independent cause of the accident which follows. If he be free from negligence he is entitled to recover for the injuries he sustains, for he was doing only what the law authorized, and what the corporation, responsible for the condition of the way, was bound to anticipate and provide for while the way remained open for travel. The negligence of the corporation is the proximate, although the act of the person injured is the more immediate, cause of the injury. 1 Suth. Dam. 62. One who, acting with reasonable prudence, voluntarily exposes himself to danger for the purpose of protecting the person of another, may recover for the consequent injuries he receives from the person whose wrong caused the injury to himself, and the danger to the person he sought to aid. Linnehan v. Sampson, 126 Mass. 506; Cottrill v. Railway Co., 47 Wis. 634; 3 N. W. Rep. 376; Railway Co. v. Crosby, 74 Ga. 737; Eckert v. Railway Co., 43 N. Y. 502. The same has been held to be true of one who under similar conditions is injured in an attempt to protect his own property. Wasmer v. Railway Co., 80 N. Y. 212; Rexter v. Starin, 73 N. Y. 601. In Eckert v. Railway Co., supra, it was said, in effect, that a person might expose himself to greater danger without negligence in attempting to save human life than he could in attempting to save property. It is not claimed that the right to recover in such cases depends in any respect upon the legal liability of the person inj ured to do that which he was attempting to do when the inj uries were received, but rather upon his moral obligation and right to do it.

In this case the plaintiff did not receive the injuries of which he complains in any attempt to protect human life, nor in trying to save his own property. So far as we are advised by the record, he was under no legal obligation to protect the property of his neighbor; yet his attempt to do so was entirely lawful, and was most praiseworthy. If he had failed to make a reasonable effort to save it, he would have merited the censure and contempt of his neighbors ; and this would have been so notwithstanding the fact that defendant may have been liable for all loss which could occur, and that what he accomplished would inure to its benefit. It is the duty of everyone, according to the requirements of an enlightened and just public sentiment, to use reasonable efforts to preserve the property of others from threatened destruction ; and, as is well known, it is a duty which people generally are quick to discharge. The defendant could have foretold, with almost absolute certainty, when it set the fire in question, that plaintiff, beingnear, would use every reasonable means in attempting to save Ortman’s horses from the flames, and there was nothing surprising or unusual in the attempt he made. Under the circumstances oí the case, it was the natural, and probable result of the wrong of defendant. A person would not be justified in exposing himself to as great danger in saving property as he would in saving human life, and whether the person injured acted with reasonable prudence would, in most cases, be a question of fact depending upon the circumstances under which the act was done. In Harris v. Township of Clinton, 64 Mich. 447; 31 N. W. Rep. 425, it was said that “it is not a universal rule that the defendant is excused from liability merely because the plaintiff, knowing of the danger caused by the defendant’s negligence, voluntarily incurs that danger. If the defendant has so acted as to induce the plaintiff, acting with reasonable prudence, to incur the danger, * * * the defendant is liable.”

The case of Seale v. Railway Co., 65 Tex. 274; s. c., 57 Am. Rep. 602, is relied upon by appellee, and in some respects it seems to support the ruling of the district court. In that case the court says that the defendant should have anticipated that its negligence would endanger the property of plaintiff, and that sheand perhaps others would attempt to extinguish the fire, but that it could not have anticipated that, in that attempt, life would have been lost without negligence on the part of the person killed. The conclusion of the court seems to rest upon the theory that the petition showed that the death of the deceased was the result of her own negligence.. But, under the facts of this case as admitted by the demurrer, the plaintiff was not negligent. It is true that but for the voluntary act of plaintiff he would not have been injured. As we have seen, however, that act, although voluntary in one sense, was ¡invited and induced by the wrong of defendant, and the consequent injuries were the natural and direct result of that wrong. The order of the district court is REVERSED.