(dissenting).
I can not assent to-the conclusions of the foregoing opinion that the agreement in question was effectual to relieve the defendant, of liability for negligently setting fire to and destroying the property of the plaintiff. Something has been said on rehearing in regard to the liability of the defendant, to the insurance companies and their right to recover; but as no question in regard to such liability and right-of recovery, as distinguished from the liability of defendant to Griswold for the loss he sustained, for which he has not been compensated, is presented by the pleadings, or was argued on the first submission of the cause, it should not, as it seems to me, be given weight now. It is well settled that, in a civil case, a party can not, on rehearing, make a case different from that presented on the original submission. McDermott v. R’y Co., 85 Iowa, 180, 52 N. W. Rep. 185, and cases therein cited. It follows that the only questions which we should now consider are those involved in determining the character and effect of the provisions of the-case in-question, and the right of Griswold to recover, without regard to the interests of the insurance companies. On the rehearing we have been favored with elaborate arguments by representatives of several of the leading railway corporations doing business in the state, and, in explanation, it is said that the questions involved are of interest to all railway companies in the *275state, and that the former opinion, if adhered to, will seriously affect their management and business. It .is probably fair to presume that leases with provisions similar to the one in controversy are now, or soon will be, in general use in the state, and that the questions involved are of interest to the large number of persons who are now, or shall hereafter be, concerned in buildings and property located on land owned by railway corporations by virtue of leases from the corporations. The importance of the questions to the railways and to people doing business with them is apparent. It does not seem to me that the authorities cited in the opinion of the majority justify the conclusions they reach. 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 was said in West v. R’y Co., 77 Iowa, 654, 35 N. W. Rep. 479, and 42 N. W. Rep. 512, that this statute imposes an absolute liability upon railway corporations'- without régard to the contributory negligence of the person injured, for. damages resulting from fires set out or caused by negligently operating their railways. The facts admitted in this case show that the fire in question was caused by defendant in operating its railway, and that the fire was the result of negligence on its part. Whether a railway company may limit its liability for a fire which it causes without fault on its part is a question not involved in this case; but we are required to determine whether a railway company may, by a contract entered into before the act, limit its liability for a fire which is caused by negligence on its part in operating its railway; Section 1308 of the Code provides, in effect, that a common carrier, or carrier of passengers, can not exempt itself from liability, as such carrier, by contract. Although there is some conflict in the authorities, yet it .is the general rule, in the absence of stat*276utory regulations, that railway companies can not restrict their liability for negligence in transporting passengers or freight by contracts made in advance of the carriage; and the same is 'true in regard to the power of telegraph companies to limit their liability for negligence in transmitting dispatches. It is said in Cooley on Torts (page 687), with reference to agreements of that kind, that “the cases of carriers and telegraph companies have been specially mentioned, because it is chiefly in these cases that such contracts are met with. But, although the reasons which forbid such contracts have special force in the business of carrying persons and goods, or of sending messages, they apply universally, and should be held to defeat all contracts by which a party undertakes to put another at the mercy of his own faulty conduct.” In Johnson’s Adm’x v. R’y Co., 11 S. E. Rep. (Va.) 829, the administrator sought to recover damages for the death of his intestate, which was claimed to have been caused by the negligence of the railway company. The decedent had been a member of a firm of quarry men, which agreed with the railway company to remove a certain granite bluff from its right of way. He was killed by a train of the company while he was engaged in doing the work required by the agreement. There was evidence which tended to show that the accident was caused by negligence on the part of the company. It claimed exemption from liability, however, on the ground that the agreement provided that it should “in no way be held responsible for any injuries to, or death of, any of the members of the said firm, or of any of its agents or employees, sustained from said work, should such death or injury occur from any cause whatsoever.” The court, in commenting on this provision of the agreement, said: “To uphold -the stipulation in question would be to hold that it was competent for one party to put the other parties to the *277contract at the mercy of its own misconduct, which can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it, and contracts against the public policy are void. Nothing is better settled — certainly in this court — than that a common carrier can not, by contract, exempt himself from responsibility for his own or his servant’s negligence in the carriage of goods or passengers for hire. This is so, independently of section 1296 of the Code, and the principle which invalidates a stipulation for exemption from liability for one’s own negligence is not confined to the contracts of carriers as such. It applies universally.”
Railway corporations are quasi public agencies, and perform a public duty. They are agencies created by the state with certain privileges, and subject to certain obligations. A contract that they will not discharge their obligations is a breach of a public duty, and can not be enforced. Railway Co. v. Ryan, 11 Kan. 609. An agreement by which a railway corporation undertakes, without the consent of the state, to relieve itself of a burden which is imposed upon it by law, is void, as against public policy. Thomas v. Railway Co., 101 U. S. 71. Among the obligations [imposed upon railway corporations is that of using reasonable diligence in furnishing its road with safe equipments, including locomotive engines, and of operating its road without negligence. That is a duty which it owes to the public, and any agreement which tends to lessen the diligence and care with which it furnishes and operates its road is, to that extent, against public policy. The contract entered into between Griswold and defendant was not for carriage, and primarily it was for the benefit of the parties to it, and not in the interest of the public. But it is clear that its purpose on the part of defendant was to benefit and promote its business as a carrier. The nominal sum of one dollar was not the considera*278tion which induced it to enter into the agreement. Elevators, coal sheds and lumber yards are important aids to a railway engaged in carrying grain, coal and lumber, in securing and transacting that branch of its business; and the promise of Griswold to maintain and use them, and to ship all grain, coal apd lumber he could control over defendant’s road, and the prospect for business which the existence and use of the improvements named held out to defendant, were no doubt important and controlling considerations which induced it to execute the lease. Those improvements were not only of value to the defendant, but they were important to all who bought or sold or stored commodities which were received in them. In other words, the lease was a means to promote the end for which the road of defendant was built and operated, and the public was interested in the improvements for which it provided, to the extent to which it. patronized them\ Its interest may not have been a distinct entity, capable of enforcement at the suit of any citizen, but it was one which the law recognizes, and which it will, in a suitable case, protect. The lease itself fully recognizes an interest of the public in its subject-matter. It provides that the lessee ‘‘shall transact the business for which said buildings are erected and designed, at fair and reasonable rates, and in a prompt and careful manner, so that neither the company nor the public will be prejudiced by reason of the said lessee dealing unfairly or negligently in their behalf, or in the transaction of the business connected with the grain, coal, and lumber building so erected as aforesaid.” It is true that a. contract is not void, as against public policy, unless it is injurious to the interests of the public, or tends to have that effect, or contravenes some established interest of society. But, when a contract belongs to one of those classes, it will be declared void, although, in a particular instance, no injury to the public may result. *279■5 Lawson, Rights, Rem. &¡ Pr., section 2392. “A contract invading any one of the other interests which the law cherishes, though to do what is neither indictable nor prohibited by a statute, is termed a ‘contract against •public policy’ (or sound policy) is likewise void.” Bish. Cont., section 473. To justify the conclusion that the provision under consideration is void, it is only necessary to find that the provision, if effectual, would •cause, or tend to cause, the defendant to disregard or neglect a duty which it owes to the public, and thereby violate an obligation imposed upon it by law. That such would be the effect of the provision, if sustained, •does not appear to me to be doubtful. It was not intended merely to require Q-riswold to bear the loss which should result from the hazards to which his property should be exposed by operating the railway with reasonable prudence and care, but it was intended to exempt the defendant from all liability for damages from fire which should be caused in operating its railway without regard to acts of negligence, or lack of precaution and care on its part, which should contribute to the loss. The agreement sought to exempt the defendant from liability for negligence, whatever its nature, which should be involved in the management •of its railway.
Such negligence might be manifested in many ways — as, in the use of insufficient or defective machinery, in the employment of careless or incompetent train men, or in having an insufficient number of trainmen, — and was necessarily of a kind to affect the business of defendant as a common carrier. The tendency •of the agreement was to make the defendant less diligent, in keeping its locomotive engine's in good order, in adopting improvements to prevent the escape of fire, and in selecting its employees, than it would •otherwise have been, and thus to expose, not only the property of Griswold, but all other property of a com*280bustible kind located upon its grounds, to dangers which reasonable care on its part would have prevented. The tendency of the agreement is more clearly seen when the probable aggregate effect of such agreements, entered into between defendant and all the tenants on its right of way and depot grounds in the state, is considered. To keep in good order the machinery and appurtenances of a railway, and to operate it in the manner which reasonable prudence-demands, involves the expenditure of large sums of money, and the constant exercise of skill and care by railroad employees. Whatever tends to lessen the degree of care used in operating a railway is to that extent inimical to public interest, and contrary to public policy.' Combustible property on the depot and right of way grounds of a railway company is of necessity more exposed to danger from fire caused by operating the railway than property outside of their limits j and if it can, by agreement, protect itself against liability for negligently destroying the property on its grounds, the common' experience of mankind, as applied to other matters, téaches us that the natural effect of such an agreement is to lessen the care and diligence the railway company will use to prevent such negligence and the consequent loss. It follows that each tenant is interested in the agreement of every other tenant on the same line or division of railway, and that the people who store property in the buildings of such tenants, or who are concerned in grain, coal, lumber, and other articles which are received in, or delivered from, such buildings, are also interested in the agreements.
It does not seem to me that the law which governs ordinary contracts of insurance is applicable to this case. In such contracts the property owner is never, in terms, insured against the consequences of his own negligence. On the contrary, great care is taken to. *281guard against and prevent negligence on Ms part. Insurance to the full value of the property is not given, and all inducement to negligence on his part is withheld. If loss result from his negligence, as a rule, he and the insurance company, only, are affected, his negligence not being of a character to affect the public. I am not aware that an agreement to insure a person against the consequences of his own negligence, the natural and probable effect of which would be to encourage such negligence to the danger and prejudice of others, is sustained by the courts. It is true that the public has no interest in the damages in controversy in this action, but it had an interest in the agreement in question so far as it tended to induce negligence on the part of defendant in operating its railway; and as negligence of that kind was the natural and probable effect of the agreement and as the agreement is not separable, it would seem to follow that it should be held void. 'This conclusion is not only in entire harmony with the authorities cited in the opinion of the majority, but, as it. seems to me, is required by them, as well as by the authorities cited in this dissent.
Whether the defendant owed to the public any duty in regard to its own buildings, whether the defendant had any insurable interest in the property of Griswold which was destroyed, and whether the insurance companies are entitled to recover the amounts they have paid to G-riswold, are questions which do not appear to me to be so presented as to make it proper for us to determine them on this appeal, and in regard to them I express no opinion.
Kinne, J., concurs in the dissenting opinion.