Butcher

No exception was taken to any portion of the charge of the court to the jury.

The complaint alleges that, on a certain day, the defendant was engaged in running its trains on its railway, “ and while so engaged, by reason of the carelessness and negligence of said company and the engineers and employees thereof, the fire from the engine and locomotive of said road was suffered to escape and did escape, and by reason thereof came upon the land of the plaintiff herein, aud consumed,” etc.

There was evidence to prove that the fire commenced on the land of one Wilson, and from thence spread and extended to the land of plaintiff. The defendant, in due form and at the proper time, objected to any evidence “being admitted under these pleadings which tends to establish, show, or indicate any other initial point of the fire than that alleged in the complaint.” The objection is that there is a substantial variance between the averment of the complaint and the evidence offered.

The averment is that the fire having escaped “came upon the land ” of the plaintiff, and consumed and destroyed his crop, etc. We are not prepared to say that the mere fact that fire, arising out of the negligent…