#### HEWITT *v.*PERE MARQUETTE RAILROAD CO.

1. Pleading — Time—Variance—Videlicet.

Generally, allegations of time, place, quantity, quality, and value, when not descriptive of the subject of the action, need • not be proved strictly as alleged: whether they are so descriptive is to be determined by the judge in the case before him, and no precise rules can be laid down according to which it can be in all cases determined.

*2122. Railroads — Fires—Negligence in Setting Fires — Statutes —Cinder Guards — Variance.

Under 2 Comp. Laws, § 6295, it is necessary to aver and prove as alleged the date when plaintiff claims defendant’s locomotive set fire to plaintiff’s property, in order that defendant may be advised what locomotive was claimed to be out of order; a fatal variance occurred in an action based on the statute where plaintiff’s declaration alleged that the fire occurred on, to wit, the 15th day of July, 1906, but no witness was able to fix the date further than to say that the fire occurred during July.1

3. Same.

Evidence that a fire which destroyed plaintiff’s property originated on defendant’s right of way, that the wind was blowing from the railway towards plaintiff’s premises, that fires had sometimes been set by defendant’s locomotives, without any testimony tending to prove that it was set by any specified engine, or that a train passed shortly before the fire was discovered, or that the right of way was in condition to cause a fire, besides the fact that the grass was dry, was not sufficient to raise an issue for the jury.

Error to Kalkaska; Lamb, J.

Submitted April 12, 1912.

(Docket No. 23.)

Decided July 11, 1912.

Case by William C. Hewitt against the Pere Marquette Railroad Company for negligent destruction of plaintiff’s property by fire. Judgment for plaintiff, defendant brings error.

Reversed.

*Bills, Streeter, Partner & Shields (Seward L. Merriam*and *Govell & Gross,*of counsel), for appellant.

*Wayne Simmons (Ernest G. Smith,*of counsel), for appellee.

1

 Liability of railroad for setting fires which spread to the property of others, see note in 21 L. R. A. 262.

Constitutionality of statute imposing absolute liability, see note in 25 L. R. A. 161.

Ostrander, J.

The action is trespass on the case. The case made by the declaration, which was filed April 26,1911, is that defendant, a common carrier railroad *213company, negligently set a fire on, to wit, July 15, 1906, and on, to wit, July 8, 1909, on its right of way, which fires spread to the premises of plaintiff and destroyed his properly. The declaration is inartificial, appears to have been intended to contain two counts, and in its conclusion is grounded upon 2 Comp. Laws, § 6295. Defendant pleaded the general issue, produced no testimony at the trial, preferred a request that the court direct a verdict in its favor and because of the refusal to give the said direction; and because of various other rulings of the court, and alleged improper conduct of counsel for plaintiff, seeks to reverse a judgment for plaintiff entered upon the verdict returned by the jury. The record contains the substance of all the testimony given upon the trial. As developed at the trial, it is plaintiff’s theory that both fires were set by defendant’s locomotives upon the right of way, escaping therefrom to the adjoining land of the plaintiff. The date of the fire in 1909 is fixed by a witness as July 8th. The fire of 1906 occurred some time in the month of July; no witness being able to more certainly fix the date.

The point was made upon the trial and is the subject of the first assignment of error relied upon in the brief, that the time of the fire is material and must be strictly proved, even though it is alleged under a videlicet. Generally allegations of time, place, quantity, quality, and value, when not descriptive of the identity of the subject of the action, will be found immaterial and need not be proved strictly as alleged. Whether they are descriptive is to be determined by the judge in the case before him, and no precise rules can be laid down according to which it can be in all cases determined. Much depends upon particular circumstances, the nature of the averment itself, and the subject to which it is applied. 1 Greenleaf on Evidence (15th Ed.),§ 56 *et seq.*

In the case at bar, it is alleged in the declaration that it was the duty of the defendant to use due and proper care to provide safe engines, with safe and proper machinery, *214smokestacks, fire boxes, and spark arresters, so that fire should not be communicated from the engine and smokestack to plaintiff’s property, to at all times see that the engines and machinery were in good condition, and that they were properly managed, and that all reasonable precautions should be taken at all times to prevent the escape therefrom of any sparks, to keep its right of way clean and free from dry grass and other combustible material. It is alleged that defendant was negligent in the performance of these duties, and, at the times and places mentioned, utterly failed in the performance of these duties. A circumstance to be considered is that any locomotive is liable to set a fire *(Dolph*v. *Railway Co.,*149 Mich. 283*[112 N. W.*981]), and that this fact is recognized in the statute which provides that the company shall not be liable in such cases if it proves to the satisfaction of the court and jury that such fire originated from fire by engines whose machinery, smokestack, or fire boxes were in good order and properly managed. It requires no argument to show that in such a case as the one at bar, if the date of the fire can be alleged under a videlicet and proved to have occurred before the beginning of suit and at any time within the period of the statute of limitations, the defendant will be denied the knowledge necessary to enable it to prepare its defense and the benefit of the statute. If we may not take judicial notice of the fact that the defendant, in the operation of its road at the place in question, employs many agents and locomotives, the declaration and the testimony supply the necessary data. One of several locomotives, operated by one of several enginemen upon one of the many occasions when the train passed over the road, set the particular fire, if it was set by the defendant. I am of opinion that the time of the negligent action asserted is so far material and descriptive of the negligence relied upon by plaintiff that it should be proved as alleged. *Eastman*v. *Bodfish,*Fed. Cas. No. 4,255. As to the fire of 1906, there was therefore a variance of proof from allegation which prevented a recovery.

*215It is contended that the origin of the fire of 1909 was not proven. The point was raised by objection to proof of damages until the origin of the fire was fixed, and by the motion to direct a verdict for defendant. There is testimony tending to prove that the fire originated in the right of way, spreading to the land of plaintiff; that the wind was in a proper direction to carry fire from the right of way to the land of plaintiff. There is testimony tending to prove that the grass was dry on the right of way. Beyond this there is no testimony concerning the condition of the right of way, and no proof that a train passed over the road shortly before the fire was discovered, which was about noon on July 8th. It appears from the argument made to the jury by the attorney for the plaintiff, a portion of which is contained in the record, that he asserted that both fires were caused by the 11 o’clock passenger train going up the grade passing the plaintiff’s farm. There is no testimony tending to prove that in 1909 there was such a train running. The testimony falls far short of that presented in *Jones*v. *Railroad Co.,*59 Mich. 437 (26 N. W. 662), and in *Clark*v. *Railway Co.,*149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559), where it was held that the trial court properly left the question of the origin of the fire to the jury. That the fire might have been set by a locomotive is undoubtedly true. But if the testimony tends to prove no more, it is not sufficient. *Clark*v. *Railway Co., supra.*It might have been set in various ways. In the language of the statute, defendant is liable for damages caused by fire originating from such railroad, either from engines passing over said road, fires set by the company employés by order of the officers of the road, or otherwise, originating in the constructing or operating of the road.

In the case at bar, as in *Osborne*v. *Railway Co.,*111 Mich. 15 (69 N. W. 86), some of the jury seem to have been troubled concerning the proof of the origin of the fire. This inference is drawn from the question asked by one of the jurors when they returned into court for fur*216ther instructions, after they had been instructed that, if they could not say from the testimony in the case that the fire was set by the defendant company, then it would be their duty to return a verdict for defendant. Unless the mere fact that fire originating upon the right of way of the railroad company, coupled with the fact that fires had sometimes been set by locomotive engines, is evidence that it was set by engines of the company, there was no evidence of the origin of the fire of 1909. The jury should have been told that the testimony upon the subject was insufficient. Other alleged errors are not considered.

The judgment is reversed, and a new trial granted.

Moore, O. J., and Steere, McAlvay, Brooke, and Stone, JJ., concurred. Blair and Bird, JJ., did not sit.