26 Pa. Super. 112 | Pa. Super. Ct. | 1904
Opinion by
The plaintiff offered evidence to show that at about one o’clock on April 30,1901, a long train of cars propelled by two locomotives passed over the defendant’s road and within about five minutes thereafter fire was discovered in two places about fifteen feet from the track; that there was an accumulation of dry grass, leaves and hemlock treetops within the right of way along where the fire started and burned; that there was a considerable grade and a curve on the road at that place ; that it was a dry windy day, the wind blowing toward the schoolhouse ; that the fire starting in the right of way, spread out and burned rapidly and continuously to the schoolhouse. The schoolhouse was burning within about an hour from the time the fire started along the track. The space between the railroad and the schoolhouse was principally woodland on which there were treetops and brush, left when timber was cut. The plaintiff’s evidence is uncontradicted and shows clearly that the schoolhouse was burned as the direct result of the fire kindled along the track and is sufficient to justify the inference that it was ignited from sparks from one or both of the locomotives attached to the train referred to by the witnesses. There is some evidence that the space within the right of way was negligently cared for in that a quantity of grass, leaves and brush from fallen trees was allowed to remain there; that this material was set on fire and that the fire immediately communicated with the brush and other combustible material in the adjoining woods. While the burden is on the plaintiff to prove that the fire was negligently communicated by some engine of the company, the fact may be shown by circumstantial evidence. Given the passing train, the accumulated conbustible material, the fire breaking out therein within a few minutes after the train had passed and communicating directly with the plaintiff’s building, there exists a state of facts from which the jury would be authorized to draw the inference of negligence on the part of the defendant.
That part of the charge of the court, made the fourth assignment of error, does not bear the interpretation placed úpon it by the learned counsel. The court instructed the jury that the plaintiff had failed to show negligence in the construction or maintenance of the locomotives, but that there was evidence bearing upon the charge that the defendant was negligent in leaving combustible material along the track. The negligence did not relate to the emission of sparks from the locomotive, but to the fire likely to be kindled in the ordinary operation of the road by sparks thrown into the leaves and brush.
The plaintiff was permitted to amend its declaration at the argument. The objection of a variance, between the evidence and the declaration- cannot therefore avail’ the appellant. Without such amendment, however, the objection comes too late. The plaintiff’s statement charges that the defendant negligently set fire to the woodlands in such close proximity to the schoolhouse as to cause the destruction thereof. The negligence was not specifically set forth. No objection, however, was made to the evidente by the defendant at the trial nor was surprise expressed nor a continuance asked for. Under such circumstances it is too late, after a verdict, to raise the objection of a variance: Kroegher v. The McConway & Torley Co., 149 Pa. 444; Kirchner v. Smith, 207 Pa. 431.
The exceptions are overruled and the judgment affirmed.
