
    Libby v. The C., R. I. & P. R. Co.
    1. Kailroads: liability rob, vibes: negm&emce. A railroad company may show its freedom from negligence to escape liability, under section 1229 of the Code, for fires caused in the operation of its road. Following Small v. Tlve C., It. 1. <& P. JR. Co., 50 Iowa, 838. Beck, Cu. J., and Day, J„ dissenting.
    
    
      Appeal from Jasper District Court.
    
    Wednesday, October 22.
    Action to recover for an elevator and other property alleged to have been burned by a fire set out by the defendant .while operating one of its trains. There was a trial by jury, and verdict and judgment were rendered for the plaintiff. Defendant appeals.
    
      Wright, Gatch & Wright, for appellant.
    
      John T. Scott, for appellee.
   Adams, J.

The court gave an instruction in these words: Under the law a railroad company is liable for all damages by fire that is set-out or caused by operating such railway, and this without reference to the question 'of ordinary care or negligence.”

The giving of this instruction is assigned as error.

In Small v. The C. R. I. & P. R. Co., 50 Iowa, 338, which case arose from the same fire, it was held that the company might escape liability if it could show that it was free from negligence. Under the ruling in that case the giving of the instruction complained of must be deemed error.

Some other errors are assigned which we forbear to consider. No argument has been filed by the appellee, and for the reason doubtless that it was assumed that the case would be reversed and remanded under the ruling above referred to. The questions which we omit to consider may not arise again, and should thdy do so we prefer to consider them upon full argument, and one of them being a question of great importance, and in regard to which the members of the court are not at present wholly agreed.

Reversed.

Chief Justice Beck and Justice Day dissent for the reasons expressed in their opinion in Small v. C. R. I. & P. Co. above cited.  