76 Neb. 545 | Neb. | 1906
Murphy sued the defendant company in the county court of Dawson county, charging that on or about the 22d day of September, 1902, he suffered a loss by fire of 11 tons of hay, 155 growing trees and 35 fence posts of the aggregate value of $226.20, and that said fire was caused through the carelessness of the defendant. In his petition filed in the district court for said county, to which the case was taken on appeal, the plaintiff fixed the time of said fire as in the county court “on or about September 22, 1902.” Near the close of the trial, the court permitted plaintiff to amend his petition by stating that the fire occurred on or about the 21st day of October, 1902.
1. Defendant argues that by such amendment a different cause of action was alleged. This is seriously considered because there was in fact on each of the days in controversy a fire caused by defendant, which damaged plaintiff’s property. Defendant contends that by the amendment plaintiff was permitted to substitute the damage done by the fire other than the one alleged in the county court. The evidence shows that the fire of September 22d destroyed the hay on the south side of the track, and the fire of October 21st destroyed the property alleged in the petition. The damages alleged were the same in the petition filed in the county court and the amended petition filed in the district court. There was only the one fire which damaged fence posts, trees and hay. The same cause of action was alleged. Plaintiff might have recovered damages done October 21, even though he had not amended his petition, but, having chosen to amend, did not thereby lessen his rights to recover.
3. Upon the trial the plaintiff as a witness in his own behalf was asked this question: “State whether or not such trees as you have described were destroyed in this fire have a value as ornamental or shade trees and as a pro
4. Defendant requested the court to instruct the jury to return a verdict for the defendant, on the ground that there was no evidence to support plaintiff’s claim that the defendant was negligent in setting out the fire on the 21st of October. The evidence clearly shows that the fire which destroyed the plaintiff’s property described in the petition was on -or about October 21, 1902; that the defendant’s fight of way abutting the plaintiff’s damaged grove and hay lands was not kept clean and free from dry and combustible material; and that the fire began on the right of way soon after the passage of one of defendant’s locomotives. This evidence, under the rule of this court, was sufficient to establish the plaintiff’s case. Union P. R. Co. v. Keller, 36 Neb. 189; Rogers v. Kansas City & O. R. Co., 52 Neb. 86. The evidence as to the amount of damages was conflicting, but the amount of the verdict was within the limits fixed by the sevei’al witnesses, and we see nothing in the record supporting defendant’s contention that the verdict was the result of passion and prejudice on the part of the jury.
Finding no reversible error in the record, we recommend that the judgment of the district court be affirmed.
Affirmed.