
    The German Insurance Company of Freeport, Appellant, v. The Chicago and Northwestern Railway Company, Appellee.
    Railways: fires: evidence. In an action against a railway com-1 pany for a fire caused by negligent operation of an engine, the testimony of an expert as to whether fire coming from the firebox could get above the netting at the front end of the engine without going through the same, which had reference to only such engines as could have set the fire, was competent though in the nature of a conclusion.
    Same. The evidence of a qualified witness describing engines 2 which might have started the fire as belonging to a certain class, that the quality and equipment of the same were the best engines the company had, detailing the features of the engine to be considered in connection with setting out of fire, and that an engine could not be operated without small cinders escaping from -the smoke stack, was competent.
    Instructions: statement of issues. In stating the issues, the bet-3 ter practice is for the court to make a succinct statement thereof rather than to copy the pleadings, but where the points for decision of the jury are clearly stated in other parts of the charge there is no prejudicial error.
    Submission of withdrawn issues. It is error to submit an issue 4 which has been withdrawn during the trial.
    Instructions: burden -of proof. Where the court in other instruc5 tions has pointed out just what plaintiff was required to prove to make out a case, it was not prejudicial error to instruct that it had the burden of establishing all the material allegations of the petition.
    
      Instruction: negligence. Where the court charged that proof of 6. setting the fire by one of the defendant’s engines raised the presumption that defendant was guilty of negligence and to avoid liability the burden was upon it to overcome such presumption by disproving every fact which would justify a finding of negligence, plaintiff was not prejudiced by another instruction that even though defendant’s engine set the fire there could be no recovery unless the jury found that the sparks escaped from the locomotive through negligent failure to keep the same in repair.
    Negligénce. Negligence defined as “a failure to exercise that 7 degree of care and diligence that an ordinarily prudent person would exercise in his own affairs under like or similar circumstances,” includes negligent acts of commission as well as omission.
    Instructions: escape of fire: appliances. Where the jury was 8 told that a railway company is required to have the best appliances for preventing the setting of fires, and that its engines must be properly handled, another instruction requiring the using of “ appropriate appliances ” was not objectionable, as the term applied to the character of appliances previously referred to.
    . Same. An instruction that if the fire was started by sparks from 9 defendant’s engine it would be liable for the damage, unless, at the time, it had in use on such engine the best appliances for preventing the escape of fire, and such engine was properly handled, was not objectionable as eliminating defendant’s duty to keep the engine in repair.
    Instructions: construction of. There is no reversible error wher,e 10 the court’s instructions, when construed together, fairly present the issues, although some paragraphs standing alone are apparently contradictory.
    
      Appeal from Carroll District Court. — How. F. M. Powers, Judge;
    Wednesday, July 12, 1905.
    Action to recover damages for the destruction by fire of a dwelling house and contents upon which plaintiff had a fire insurance policy in the sum of $1,000, which indemnity it paid to the original owner of the property destroyed. Liability on tbe part of tbe company is predicated upon its setting out tbe fire. Defendant denied that it was responsible for the fire, and denied all negligence on its part. It also pleaded a settlement with the owner of the property, but as it withdrew this defense during the course of the trial the case was submitted upon the other issues tendered. There was a trial to a jury, resulting in a verdict and judgment for the defendant, and plaintiff appeals. —
    
      Affirmed.
    
    
      J. A. Grain and Lee & Robb, for appellant.
    
      James G. D'avis, A. A. McLaughlin, and M. W. Beach, for appellee.
   Deemer, J.

Something like eighteen errors are assigned as a reason for the reversal of the judgment. Not all are argued, and we shall only consider those which seem to be important or controlling. Most of these center around the instructions given and refused, although there are two or three rulings on evidence which are challenged. These latter relate to the testimony of experts as to the construction ■and operation of engines.

‘1 Claim is made that the defendant, in the negligent operation and construction of its engines, set fire to an elevator in the town of Glidden, which was communicated by this elevator to the insured dwelling house of one Nichols, to-# 0 7 tally destroying the same with its contents. ■ Defendant denied all negligence, and pleaded that its engines were properly and carefully managed, and were supplied with the best known and most approved appliances for preventing the escape of fire and sparks, which were in good repair, and carefully managed. • In making out its cáse, a witness who showed proper qualifications, was asked if there was any way in which sparks of fife coming from the fire box could get above the netting at the front end of the engine without going through the netting. As this testimony had reference to the only engines which could have set out the fire, it was manifestly competent and material. True, it was perhaps in the nature of a conclusion, but it was such an one as courts universally permit. Yahn v. City of Ottumwa, 60 Iowa, 429, and other like cases.

Other qualified witnesses described the character of the engines which might have set out the fire as belonging to what is known as class E.” They were then asked as to the quality and equipment of such engines with regard to safety and the setting out of fires, and answered that in this respect the draft, netting, and appliances were constructed the same as on other engines on the defendant’s system, and that they were, as a class, the best engines the company had. They were also asked what features of a locomotive were to be considered in - connection with the setting out or the prevention of fires. To this the responses were: netting, diaphragm, plates, netting in front end or smoke box of the engine. Other witnesses were asked as to whether an engine could be operated without small cinders escaping from the smokestack. They answered “ No.” Manifestly these questions and answers were each and all competent, material and relevant. Most of the testimony was from experts regarding the character and construction of the engines, and, although some of the questions called for answers in the nature of conclusions, they were not objectionable on that account.

II. Instead of condensing the pleadings and giving a short and succinct statement of the issues, the trial court practically copied them in its instructions. This practice is not to be commended, but there was nothing in , ' ° this case which would in any way confuse or » J confound the jury. Moreover, the exact points for decision by the jury were clearly stated in other parts of the charge, and no prejudice resulted. City v. Moore, 109 Iowa, 476; Welch v. Ins. Co., 117 Iowa, 394; Schaefer v. Insurance Co. (Iowa), 100 N. W. 857.

III. Error is predicated upon the court’s failure to submit tbe issue which was withdrawn by the defendant. -^0 discussion of such a question seems necessary. It would have been error to have submitted it after its withdrawal. West v. Averill, 109 Iowa, 488.

IV. The court instructed that the burden of proof was upon the plaintiff to establish all the material allegations of its petition. If this were all, doubtless the case should be reversed, for a plaintiff is never required to x prove more than is necessary to entitle him to recover; and a jury, under such an instruction would have difficulty in separating the material from the immaterial matters. But in other instructions the jury was told just what plaintiff was required to show in order to make out a case. After reading the instructions as a whole, the jury could not have heen left in any doubt as to what were the material allegations. -

Plaintiff’s petition was in two counts, and it is contended that it might recover if it established either. This is fundamentally correct; but in' this case defendant’s liability was predicated on a single theory, and this was fairly submitted to the jury.

The trial court instructed that if the jury found the fire was set out by one of defendant’s engines, which finally destroyed the insured property, then the presumption arose that defendant was guilty of negligence, and, in order to avoid liability, the burden was on defendant to overcome this presumption by negativing every fact which would justify a finding of negligence on its part. And in another instruction this same thougLt was practically repeated. The burden of overcoming this presumption of negligence was thus cast upon defendant, and the jury was clearly instructed that, unless defendant overcame this presumption, and met the burden, it was liable; and, if liable, that the measure of its responsibility was fixed at the amount plaintiff paid the insured, Nichols, with six per cént. interest from the time of payment. This eliminated all collateral matters, and introduced nothing which plaintiff was not required to prove in order to recover on either count of its petition.

V. After instructing as above with reference to presumptions, the trial court said in another instruction that, even though defendant’s engines set out the fire, yet there could be no recovery unless the jury further v found that the sparks escaped or were thrown from the locomotive through some negligence of the defendant either in failing to keep the locomotive in good order, etc. Taken in connection with the other instructions, there was no error here. Defendant’s liability is bottomed on negligence. True, presumptions arose aiding plaintiff’s case, or shifting the burden to the defendant, but, after all, negligence must be shown by presumption or otherwise before there is any liability. One instruction related to the ground of ultimate liability, and the other to presumptions and the burden of proof, and there is no conflict between them,, when considered together, as all instructions should be. Greenfield v. R. R. Co., 83 Iowa, 270; Hemmi v. R. R. Co., 102 Iowa, 25; Perpetual Co. v. Guarantee Co., 118 Iowa, 729; Coine v. R. R. Co., 123 Iowa, 458.

VI. In defining negligence the court said: “ Negligence is a failure to exercise that degree of care and diligence that an ordinarily prudent person would exercise in his own affairs under like or similar circumstances.” It is said that this does not cover acts of commission as well as omission, and that in this respect it is faulty and misleading. But we think it covers both. Failure to exercise care and diligence that an ordinarily prudent person would involves either or both. Shultz v. Griffith, 103 Iowa, 150, is not in point.

VII. Our fire statute does not make a railway company absolutely liable for fires set out by it. Ordinary and reasonable care on the part of the company is all that is required. There is no unvarying standard of ordinary care. Everything depends upon the circumstances and surroundings of the. case. This thought was submitted 0 , , ...» T, • to the yury under proper instructions, it is o v u. j. generally held that ordinary care on the part of a railway company demands the use of the' best known and most appropriate appliances for preventing the escape of fire, and the jury in the present case was instructed that defendant must have had the best appliances for preventing the setting out of fires, and that its engines were properly handled. In another instruction the trial court used the words “ appropriate appliances.” This term had reference to the kind of appliance which the jury had theretofore been told the defendant was required to keep. None other would be appropriate in view of the former instruction, and there was no error here.

VIII. Instruction 7 given by the court read as follows : “ If you find by a preponderance of the evidence that the fire was started by sparks emitted and thrown from one °f defendant’s engines while being operated on defendant’s railroad, the defendant will be liable, unless you further find that at that time it had in use on said engine the best appliances for the preventing of the setting out of fires, and that the said engine was at the time properly handled.” This is criticised because it omits defendant’s duty to keep its engines in repair. This instruction does not attempt to cover the whole case, and, so far as it went, was correct. Moreover, it will be noticed that the’ instruction says- that defendant at the time the engineer set out the fire must have had in use on said engine the best appliances for the preventing of the setting out of fires.” If it did not at, that very time have them on that particular engine, then defendant was, according to the instruction, negligent. This necessarily involves the thought that they were then in repair, otherwise they would not be in use. Moreover, in other instructions this point, as well as the condition of the right of way, etc., was expressly covered, and the jury could not have been misled.

Other instructions are complained of as being contradictory and misleading. Taking them as a whole, we find no such conflict as counsel think they see. When construed together, as they should be, we think they fairly presented the issues to the jury. Beading some of them alone and apart from others, we might find error, but, taken as a whole, they fully and fairly presented the exact matters for decision. Faust v. Hosford, 119 Iowa, 97; State v. Urie, 101 Iowa, 411; Martin v. Murphy, 85 Iowa, 669.

Appellant seems to confuse the degree of care required of a railway with reference to the setting out of fires with the evidence necessary to establish it. Ordinary and reasonable care is all that is required. But as its engines contain fire, which is always a dangerous element, it must use the best known and most approved appliances for confining it. In other words, the care must be proportioned to the danger. The eleventh instruction complained of by appellant holds "defendant to the exercise of ordinary and reasonable care, and the seventh required the equipment of the engine with the best appliances,” and the eighth with “ appropriate appliances.” -We find no prejudicial error in the instructions given. '

IS. As to the instructions asked by the plaintiff and refused, we find that such as embodied correct propositions of law were in fact given, although not perhaps in the exact language of the request. The only doubtful question in the case is the instruction to the effect that the burden was upon _ plaintiff to establish the material allegations of its petition. There are no express allegations of negligence in the petition. All that is charged is the setting out of the fire by an engine during the prevalance of a high windstorm, and while structures along the right of way were in a dry and' inflammable state. In other instructions the jury were clearly and explicitly directed that, if the fire was set out by one of defendant’s engines, the burden of proof was upon the defendant to overcome the presumption of negligence arising therefrom. All that the instruction complained of did was to require proof on the part of the plaintiff that the engine did set out the fire. This, of course, was correct. There was, as we think, no prejudicial error in the instruction given or in the refusal to give those asked. Coine v. R. R. Co., 123 Iowa, 458; Perpetual Co. v. Guarantee Co., supra.

X. Lastly, it is argued that the verdict is without support in the evidence. The case was peculiarly for a jury, and with its finding we are not disposed to interfere. It was for the jury to say whether or not defendant’s engine set out the fire, and, if it did, whether or not defendant had met the prima facie case of negligence made out against it. There was a conflict in the evidence on these propositions, and in such cases we do not, in the absence of some showing of passion or prejudipe, interfere. There is no such showing here.

No prejudicial error appears, and the judgment must be and it is affirmed.  