Elder Township School District v. Pennsylvania Railroad

Citations

• 26 Pa. Super. 112
• 1904 Pa. Super. LEXIS 275

Syllabus

<p>Railroads — Fire from sparks — Negligence.</p> <p>A recovery may be had for loss by fire ignited in combustible rubbish negligently permitted to accumulate on the right of way of a railroad company.</p> <p>In an action by.a school district against a railroad company to recover damages for the burning of a schoolhouse, the evidence tended to show that the schoolhouse was in the neighborhood of defendant’s road; that five minutes after a train of cars propelled by two locomotives had passed, fire was discovered in two places about fifteen feet from the track; that there was an accumulation of dry grass, leaves and treetops within the right of way along where the fire started ; that the space between the railroad and the schoolhouse was principally woodland on which there were treetops and brush, left when timber was cut; that the wind was blowing hard towards the schoolhouse, and that the schoolhouse was burning within about an hour from the time the fire started along the track. Held, that the case was for the jury and that a verdict and judgment for plaintiff slwujd b? .sustained.</p> <p>Practice, C. P. — Variance between statement and evidence — Appeal— Amendment.</p> <p>It is too late on appeal to object to a variance between the statement and the evidence where it appears that no objection was made to the evidence by the defendant at the trial, nor was surprise expressed nor a continuance asked for.</p> <p>Where such a variance appears the trial court may permit an amendment to the statement.</p>