Opinion on Rehearing.
Beck, J.I. A rehearing was granted in this case upon the petition of defendant. The question upon which we desired further argument is whether the rule of contributory negligence is applicable to cases wherein railroad companies are liable under the statutes for fires set out in the operation of their railroads. Upon the other questions in the case we had no doubt, and did not order the rehearing to gain more light upon them. We need not further discuss them. The foregoing opinion is criticised for the course of its argument, rather than assailed because of its conclusions. What is said as to the purpose of the statute “to settle a vexed question upon which the courts had been divided” may or may not be accurate. But it is very true that the statute was intended to prescribe a rule of law. Whether there had been contests as to the prior rules recognized by the courts will not determine the construction of the statute. The statute imposes an absolute liability upon railroad corporations, without regard to their negligence, or the contributory negligence of the person injured. This court has no right to interpolate words in the statute which limit that liability to cases wherein the injured person does not contribute to the injury by his own negligence. Surely, the language of the statute, without interpretation, will admit of no such construction. But it is said that this court has held in Small v. Railway Co., 50 Iowa, 338, that the railroad company is *660not liable, if it shows affirmatively that it was not guilty of negligence. It does not follow that because this court has gone so far it must go still farther, and limit the liability on another ground, namely, the contributory negligence of the person injured. There is an obvious distinction between the limit fixed by Small v. Railway Co. and the limit proposed in this case. In the first, it is a limit fixed by proof of want of negligence; in the other, it is a limit fixed by proof of contributory negligence. It may be well to hold that one who is not negligent should not be liable; but it is absurd to say that under this statute, fixing absolute liability, the fault of the railroad company being shown or being presumed, it is not liable because of the fault of the plaintiff. It will be seen that, as is said in the foregoing opinion, we are asked to take a step far in advance of Small v. Railway Co.
It cannot be said that the doctrine of contributory negligence is founded upon the rule that one wrong-doer cannot recover of another engaged with him in the commission of the wrong for injuries resulting therefrom. It cannot be said that defendant and plaintiff, both being negligent, united in the commission of the wrong. The defendant’s negligence was positive, — active. The plaintiff’s was negative, and consisted in a failure to exercise due care to prevent injuries from defendant’s negligence. The reasons demanding the rule recognized in Small v. Railway Co. do not demand that the rule of contributory negligence be extended to this case. In our opinion the cases cited by counsel for defendant do not support his contention that the doctrine of contributory negligence should be applied in this case. We adhere to the foregoing opinion.
Affirmed.