Florida East Coast Railway Co. v. Welch

Citations

• 53 Fla. 145

Syllabus

<p>1. In an action against a railroad company for damages to> trees caused through its negligent communication of fire-from a locomotive to the lands of the plaintiff, where the engine charged with the fire is not identified, the plaintiff should be allowed to show that other engines of the defendant company started other fires at or about that time either before or after the destruction of the trees,, or emitted sparks, as tending to prove the possibility and consequent probability that some locomotive of defendant company caused the fire on the occasion stated.</p> <p>2. , Where the plaintiff; in his declaration, seeks to recover for damages by a firo alleged to have been negligently set by a locomotive of defendant on or about the 10th day of January, 1904, and the evidence shows that the fire which caused the damage was set by the locomotive on January 17, 1904, and there was no objection by defendant .at the trial to the testimony that the fire occurred on January 17, 1904, and defendant did not claim that he was surprised by the variance, or make any showing that he was misled to his prejudice in the preparation of his defense, or request postponement of the trial on account thereof, and made no objection to the form of the statement of time in the declaration, the court did not err in refusing to charge the jury that plaintiff cannot recover because of this variance between the declaration and the proof.</p> <p>3. There is no fatal variance between the allegation and proof where the declaration alleged that the defendant company, through its negligence, communicated fire to the lands of the plaintiff by and from a locomotive, which fire, so communicated from the locomotive, spread over ■ > '■ and upon the lands of the plaintiff and burned up and injured trees of the plaintiff, and the proof showed that the fire was not set by and from the locomotive directly, or in the first instance, to the land of the plaintiff, but the fire was negligently set by defendant