
    Ed R. Westing, appellee, v. Chicago, Burlington & Quincy Railway Company, appellant.
    Filed October 22, 1910.
    No. 16,160.
    1. Appeal: Variance: Review. A judgment will not be reversed for a variance between plaintiff’s allegations and bis proof, unless it is clearly shown to be material and that tbe defendant bas been misled thereby to bis prejudice in making bis defense.
    2. -: -: -. Unless the matter of variance has, in some suitable manner, been brought to tbe attention of tbe trial court, a court of review may decline to consider it.
    3. Railroads: Damage by Ftiíic: Burden oe Prooe. In an action for damages clearly shown to have been ^caused by tbe escape of fire from a railroad engine, tbe burden is upon the company to show that tbe engine was properly constructed, equipped, and operated.
    4. Trial: Failure oe Plaintete to Testify: Instructions. Where tbe plaintiff, by tbe evidence of competent and disinterested witnesses, fully establishes his cause of action and tbe amount of bis recovery, be may decline to testify in his own behalf, and his omission, while upon the witness stand, to state the amount of his damages does not require the court in his instructions to comment unfavorably upon that fact.
    Appeal from the district court for Kearney county: Harry S. Dungan, Judge.
    
      Affirmed.
    
    
      James E. KeTby, Byron Clark and J. L. McPheely, for appellant.
    
      Adams & Adams, contra.
    
   Barnes, J.

Action to recover damages by a fire alleged to have been caused by the negligence of the defendant. The plaintiff had the verdict and judgment, and the defendant has appealed.

One of defendant’s assignments of error, and perhaps the principal one, is that there was a fatal variance between the plaintiff’s allegations of negligence on which he sought to recover and the proof contained in the record. The charging part of the plaintiff’s petition is, in substance, as follows: That on or about the 5th day of November, 1907, the defendant, contrary to its duty in that regard, carelessly and negligently omitted to keep its right of way free and clear of dry and combustible materials, but negligently permitted large quantities of dry grass and weeds to accumulate over and upon its tracks and right of way near the premises of plaintiff, and especially near the northeast quarter of section 26, in township 8, range 14 west, in Kearney county, Nebraska; that on or about said 5th day of November, 1907, the servants, agents and employees of defendant in operating and running its engines over its line of road at or near the northeast corner of section 27 aforesaid, the same being near the premises of the plaintiff in said county, negligently and carelessly permitted said engine, being an engine opera!ed by said servants at said time, to cast out sparks and coals of fire therefrom into the dry grass and other combustible materials on defendant’s right of way and set fire thereto, which spread out and over said lands of plaintiff, and thereby burned up and destroyed all the grass and herbage on said lands.

Defendant’s answer contained a general denial, and also certain allegations of contributory negligence on plaintiff’s part, which caused the damages for which he sought to recover.

The record fairly discloses that the fire which caused the damage in question originated from sparks or-coals of fire thrown by one of the defendant’s engines or locomotives, but instead of starting in the rubbish, weeds, dry grass, etc., alleged to have accumulated on defendant’s right of way, it started in the grass several feet outside of the right of way on a small tract of land belonging to one Lang, and thence it spread onto the plaintiff’s premises. This is the matter of variance on which the defendant relies for a reversal of the judgment of the district court. It is contended that such variance is material, and therefore the verdict is not sustained by the evidence.

There might be some force in this contention if the defendant had seasonably presented that question to the trial court. It appears, however, that when the plaintiff introduced his evidence it was not objected to because it failed to support the allegations of the petition and was at variance therevrith. In fact, it does not appear that the matter of variance was urged or even suggested by any one at any time during the trial in the district court. It Avas not raised or discussed during said trial or in the motion for a new trial, and there is nothing in the; record Avhich tended to raise that question, unless it be held that defendant’s request for a directed verdict had that effect.

By section 138 of the code it is provided: “No variance between the allegation in a pleading and the proof is to be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as may be just.” In accordance with the foregoing, it was held in Knight v. Finney, 59 Neb. 274, that “variances between allegation and proof which are immaterial or not prejudicial do not call for a reversal of a judgment.” In the opinion it was said: “It is argued that there were fatal variances between the note in suit as pleaded and the one introduced in evidence. There were some differences, but none material to the issues, or the existence of which could in the least prejudice the rights of the complainant; moreover*, the error, if any in this regard, was in no manner the subject of notice, objection or exception in the trial court, and is not entitled to consideration here.” In Spencer v. Wilson, 74 Neb. 459, it was held : “Where a party relies upon a variance between the pleadings and the proof to defeat a recovery, that question should be raised at some time during the progress of the trial, and, unless it is so raised and suggested to the trial court, it will not be considered on error in this court.’' Again, we have frequently held that a variance between the averments of a pleading and the evidence given to sustain it is not to be deemed material unless it has misled the adverse party to his prejudice. Lubker v. Grana Detour Plow Co., 53 Neb. 111; Toy v. McHugh, 62 Neb, 820; Stull v. Masilonka, 74 Neb. 309; Ittner Brick Co. v. Killian, 67 Neb. 589.

It is true that in the case at bar it was alleged in the petition that the fire started in the weeds, dry grass an<i combustible materials Avliich defendant had negligently permitted to accumulate on its right of way, AVhile the proof shoAVS that it started outside of the right of way; but it clearly appears that defendant’s section foreman made a report of the fire at the time it occurred, and tin company was fully aware of that fact, therefore it lnr ample opportunity to prepare its defense in accordance with that view of the case. So it cannot he said that the variance complained of misled the defendant to its prejudice, and it therefore affords no ground for reversing the judgment of the district court.

Defendant’s other assignments of error relate to the matter of instructions, and the foregoing rule disposes of all of them but two, which we will now consider.

It is contended that the court erred in giving instruc-. tion numbered 3, upon his own motion, by which it was stated in substance, among other things, that in order to entitle the plaintiff to recover it would only be necessary for him to prove that the defendant, by and through its agents and employees, set out the fire, and that the same spread over his premises, destroying his crops and injuring his land as claimed by him in his petition. It is contended that the burden of proof is upon the plaintiff; that he had alleged negligence; and that this instruction cast the burden of proof upon the defendant. A like question was before this court in Union P. R. Co. v. Keller, 36 Neb. 189, where it was said: “Where the proof shows that a fire originated from an engine running over the defendant’s railway, it is unnecessary for the plaintiff to show affirmatively any defect in the construction or condition of the engine, or any negligence in its management. Negligence will be presumed from the fact that fire was set out.” In Rogers v. Kansas City & O. R. Co., 52 Neb. 86, we held: “Where damage is caused by the escape of fire from a railroad engine, the burden is upon the company to show that the engine was properly constructed, equipped, and operated.” From the foregoing it is apparent that the district court did not err in giving the instruction complained of.

Finally, it is contended that the court erred in refusing to give instruction numbered 14, requested by the defendant. The request reads as follows: “The court instructs the jury that, the fact of plaintiff’s not testifying as to the value of the property he claims was destroyed by fire in determining the amount of damage lie lias sustained, you have a right to presume that his knowledge and evidence, if given, would be against his interest.” It is true that the plaintiff did not testify as to the' amount of his damages; but there is sufficient competent evidence given by apparently disinterested witnesses upon that question to sustain the verdict of the jury. We are not aware of any rule compelling the plaintiff to establish the amount of damages by his own testimony, and there would seem to be no reason for him to testify upon that point if he is tibie to establish it by the evidence of other competent and lisinterested witnesses. We are therefore of opinion that die court properly refused to give this instruction.

After a careful examination of the record, we are saiisfied that it contains no reversible error, and the judgment ..f the district court is therefore

Affirmed.

Sedgwick, J.,

concurring.

It is said in the opinion that the defendant “had ample opportunity to prepare its defense” because* its section foreman reported the facts to the company at the time they occurred. I think that this will not do as a rule of pleading. If this is to be the rule of pleading, then there will be no necessity of pleading at all; it will only be necessary to prove that the defendant has had “ample notice” from some other source that the plaintiff has a valid claim and full notice of the nature of the claim. A defendant in a lawsuit has a right to- rely upon the petition as stating all that he is required to defend against. It is not supposed that he will be ready, in court, to defend against other charges not contained in the pleadings.

I concur in the conclusion on other grounds stated in the opinion.

Reese, C. J.,

concurring.

I concur in the result reached in the opinion of the majority, but desire to say that I do not think that, under the circumstances of this case the averment that the fire was started within the right of way is material in so far as the statement of facts constitutes a cause of action is concerned. I believe the petition would be good without the allegation. If I am correct in this, the fact that defendant knew of the true conditions through the report of a proper employee, there could be no surprise, and therefore no error, even if the matter had been properly presented to the district court.  