
    No. 20,536.
    W. C. Hill, Appellee, v. The Missouri Pacific Railway Company, Appellant.
    
    SYLLABUS BY THE COURT.
    
      Negligence — Damage by Fire — No Departure Between Allegations and Findings of Negligence. A finding that the defendant’s section men set out more fire at one time than they could control is not a departure from the allegation that they “negligently allowed the fire so set to' escape and burn over the entire eighty acres of land, and were negligent in setting out the fire at the time.”
    Appeal from Barber district court; Preston B. Gillett, judge..
    Opinion filed January 6, 1917.
    Affirmed.
    
      W. P. Waggener, Walter E. Brown, both of Atchison, A. E. Crane, of Topeka, and Seward I. Field, of Medicine Lodge, for the appellant.
    
      A. L. Noble, and J. N. Tincher, both of Medicine Lodge, for the appellee.
   The opinion of the court was delivered by

West, J.:

The defendant appeals from a judgment for damages caused by fire set out upon its right of way. The allegation was that the defendant’s servants and agents “while engaged in burning a fire guard along the line thereof, either upon or adjacent to said eighty acres of land, negligently allowed the fire so set out to escape and burn over the entire eighty acres of land and were negligent in setting out the fire at the time and that by reason of the negligence,” etc. In addition to the general verdict the jury answered special questions to the effect that the section men were negligent in setting out the fire on the right of way, such negligence consisting in “setting out more fire at one time than they were able to control.” It is contended that this is a departure from the negligence declared upon in the petition and that under the well-settled rule the former was in the minds of the jury left without evidential support, and that it was error to deny the defendant’s motion for judgment on the special findings. But we see no conflict between the charge that the section men negligently allowed the fire to escape and were negligent in setting it out and the finding that they set out more at one time than they were able to control. Fire is said to be a kind servant but a dangerous master, and anyone who attempts to handle an element so provocative of disaster should by the promptings of ordinary caution restrict his operations to such space as will not naturally involve its spread beyond his control.

Since the submission of the case it has been made to appear by stipulation that the motion for a new trial was withdrawn, and hence another alleged error complained of is eliminated.

The judgment is affirmed.  