Butcher

I concur in the judgment of reversal, and, in the main, in the opinion of Mr. Justice Sharpstein. I do not agree, however, that the testimony of the witness Marshall was admissible, nor do I agree with what is said in the opinion with respect to the witness Babb.

I dissent from the judgment reversing the judgment and order of the court below, and from the reasons therefor.

Whatever may have been the origin of the fire which consumed the plaintiff’s grain, none of the witnesses saw it before it had reached “Wilson’s field,” which lies between the defendant’s railroad and the plaintiff’s land. The allegation of the complaint is that “by reason of the carelessness and negligence of said company (defendant), 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,” etc. To the introduction of evidence of the discovery of the fire in “Wilson’s field,” the defendant objected upon the ground that “the allegation of the complaint is as to a fire communicated by the defendant’s engine to the plaintiff’s field.” The most favorable light in which the evidence can be viewed for the plaintiff is that it tends to prove that a fire was kindled in “Wilson’s field” by sparks emitted by said locomotive, and that the fire so kindled moved on through said field until it reached the land of the plaintiff, where it caused the injury complained of. And if this constitutes a material variance between the proof and the allegation, the…