Butcher v. Vaca Valley & C. L. R. Co.

SHARPSTEIN, J. Whatever may have been the origin of the fire which consumed the plaintiff’s grain, none of the witnesses saw it before it had reached “Wilson’s field,” which lies between the defendant’s railroad and the plaintiff’s land. The allegation of the complaint is that “by reason of the carelessness and negligence of said company (defendant), and the engineers and employees thereof, the fire from the engine and locomotive of said road was suffered to escape and did escape, and by reason thereof came upon the land of the plaintiff,” etc. To the introduction of evidence of the discovery of the fire in “Wilson’s field,” the defendant objected upon the ground that “the allegation of the complaint is as to a fire communicated by the defendant’s engine to the plaintiff’s field.” The most favorable light in which the evidence can be viewed for the plaintiff is that it tends to prove that a fire was kindled in “Wilson’s field” by sparks emitted by said locomotive, and that the fire so kindled moved on through said field until it reached the land of the plaintiff, where it caused the injury complained of. And if this constitutes a material variance between the proof and the allegation, the objection should have been sustained. But the court overruled it. The ruling was excepted to, and is specified as error.

[429]Whether the destruction of the plaintiff’s property was caused by a fire kindled on his premises by sparks which proceeded directly from the locomotive to his land, or by a fire kindled on land adjoining his by sparks from the same source, would not affect the defendant’s liability: Henry v. Southern P. R Co., 50 Cal. 176; Fent v. Toledo P. & W. Ry. Co., 59 Ill. 349, 14 Am. Rep. 13; Insurance Co. v. Tweed, 7 Wall. (U. S.) 44, 19 L. Ed. 65; Powell v. Deveney, 3 Cush. (Mass.) 300, 50 Am. Dec. 738; Vandenburgh v. Truax, 4 Denio, 464, 47 Am. Dec. 268; Hart v. Western R. Co., 13 Met. (Mass.) 99, 46 Am. Dec. 719; Perley v. Eastern R. Co., 98 Mass. 414, 96 Am. Dec. 645; Piggot v. Eastern Counties Ry. Co., 54 E. C. L. 229; Smith v. London & S. W. R. Co., L. R. 5 C. P. 98; Field v. New York C. R. Co., 32 N. Y. 345. If the allegation had been strictly in accordance with the evidence, the material question would have been: Was the plaintiff’s property destroyed by a fire kindled in “Wilson’s field” by sparks emitted from defendant’s locomotive? As it is, if the evidence had strictly corresponded with the allegation, it would have shown that sparks emitted from the defendant’s locomotive proceeded directly to plaintiff’s land, and there kindled the fire which consumed his property. In either case the gravamen of the charge would be: that the fire was caused by the negligence of the defendant in permitting sparks to escape from its locomotive. So the only variance between the allegation and the proof is as to the place where the fire which, it is alleged, escaped from defendant’s locomotive first came in contact with inflammable matter; and the liability of the defendant would be the same whether the locus in quo was on the plaintiff’s land or in “Wilson’s field”; therefore it is not apparent to us how the defendant could have been actually misled to its prejudice in maintaining its defense upon the merits: Code Civ. Proe., see. 469.