Mentzer

(after stating the facts as above). [1] 1. The plaintiffs in error were defendants in the court below. It is contended by them that the plaintiff, having sued the defendants jointly upon one cause of action, cannot recover upon proof of distinct separate torts, one based upon the operation or construction of a particular engine of the Northern Pacific Railway Company, and one based upon a different claim of negligence in the operation or construction of an engine of the Oregon-Washington Railroad & Navigation Company. Admitting the rule to be as stated, it has no application in this case. No recovery was sought, nor has any recovery been had upon proof of distinct separate torts. The allegations of the complaint are that:

This allegation charges but a single cause of action, namely, the setting fire to the plaintiff’s property by sparks negligently emitted from an engine belonging to one of the defendants, not from engines belonging to both of the defendants, and the running of that engine over the tracks of the Northern Pacific Railway Company. It was stipulated between the parties that the Oregon-Washington Railroad & Navigation Company was running its trains over the trackage…