v. Railroad Co., 59 Ill. 349; Kellogg v. Railway Co., 26 Wis. 223; Railway Co. v. Muthersbaugh, 71 Ill. 572.

"In the case before us, under the pleadings, appellant was liable if it negligently set out fire on its right of way, or, having set it out on its right of way, negligently permitted it to escape therefrom. There was evidence fairly tending to show that the fire set out by appellant's servants on its right of way passed as a natural consequence, without the intervention of any independent and responsible human cause,' to appellee's property. From this evidence the court could have found that the loss sustained, considering the state of the wind and weather existing at the time, and all the attending circumstances, as shown by the evidence, was the natural and probable consequence of the negligence of appellant, such as might, under the conditions, have been reasonably foreseen, and, therefore, that appellant's negligence was the proximate cause of appellee's loss. Railroad Co. v. Kreig, 22 Ind. App. 405, 53 N. E. Rep. 1033; Railroad Co. v. Kellogg, supra; Small v. Railroad Co., 55 Iowa, 582, 8 N. W. Rep. 437; Adams v. Young, 44 Ohio St. 80, 4 N. E. Rep. 599; Hart v. Railroad Co., 13 Metc. (Mass.) 99; Railroad Co. v. Brinkman, 64 Md. 52, 20 Atl. Rep. 1024; Kelsey v. Railway Co., 1 S. D. 80, 45 N. W. Rep. 204; Yankton Ins. Co. v. Fremont, E. & M. V. R. Co., 7 S. D. 428, 64 N. W. Rep. 514; Kuhn v. Jewett, 32 N. J. Eq. 647; Frace v. Railroad Co., 143 N. Y. 182, 38 N. E. Rep. 102; Billman v. Railroad Co., 76 Ind. 166; Railroad Co. v. Krinning, 87 Ind. 351; Railroad Co. v. Nitsche, 126 Ind. 229, 26 N. E. Rep. 51, 9 L. R. A. 750; Railroad Co. v. Williams, 131 Ind. 30, 30 N. E. Rep. 696; Railway Co. v. Burden, 14 Ind. App. 512, 43 N. E. Rep. 155; Shear. & R. Neg., § 666 et seq."

In ENIX V. IOWA CENTRAL RAILWAY CO. (Iowa, October, 1900), 83 N. W. Rep. 805, an action to recover damages for loss of a house by fire alleged to be caused by defendant's engine, judgment for plaintiff was affirmed. The court (per SHERWIN, J.), stated the case

as follows.

"Complaint is made of the reception of testimony tending to prove the cost of a building alleged to be of different size and shape from the one burned. So far as the record before us shows, no objection was made to this testimony, and the one now presented cannot be considered.

"A witness, who was an insurance agent, and an adjuster of losses by fire, testified, over the defendant's objection, as to the cost of a building similar to the one burned. His testimony was

based upon what was called an "adjuster's rule," which figures the cost of a building at so much per cubic foot of space in the building above the foundation. The evidence of carpenters tended to show that the rule under which this witness made his estimate was approximately correct so determined by their own experience. The evidence was properly admitted. On the cross-examination of defendant's experts on the cost of buildings, the plaintiff was permitted to ask questions as to the cost of a building of a different size and shape from the one testified to in chief. There was no error in this. The plaintiff, in the first place, was not bound to confine his inquiries to the exact dimensions of the building under consideration on direct examination of the witness; and, in the second place, because there was testimony in the record tending to support the theory of the cross-examination; and, further, the verdict itself clearly indicates that no possible prejudice could have resulted from the cross-examination complained of, if not correct. The record does not show that the witness G. W. Stamm testified as claimed by counsel in argument, and we discover nothing in the testimony he did give which was prejudicial to the defendant.

"The defendant very urgently presses its claim that a new trial should have been granted because of language used by counsel for the plaintiff in presenting the case to the jury. The statement was made and repeated that the defendant's engines were old fire traps. There was no direct testimony on either side of the case as to the condition of any of the defendant's engines, nor as to the means used to arrest sparks on the engine supposed to have set the fire in question. The burned building was situated 150 feet from the nearest point on the railroad track. The issue was squarely made that the fire was the result of a defective chimney, and was not caused by defendant's engine. There was also testimony tending to show that other fires had been set by defendant's passing trains. In view of the whole record, we reach the conclusion that the statement was not such as to require a reversal of the case. The remark of the trial court, in ruling upon an objection to this language, that he thought it not objectionable, and that counsel had a right to call them 'fire traps,' could not well have been understood by the jury as meaning anything more than that it was proper comment under the evidence. As the language itself was not, in our judgment, prejudicial, we think the remark of the court did not make it so, or influence the jury to the prejudice of the defendant. The verdict, both as to the cause of the fire and as to the value of the house, finds ample support in the evidence, and the case is affirmed."

In BRADLEY V. IOWA CENTRAL RAILWAY CO. (Iowa, May, 1900), 82 N. W. Rep. 996, an action for damages for property alleged to have been destroyed by fire from one of defendant's engines, judgment for plaintiff was reversed. On the question of damages the court (per WATERMAN, J.), said: "The property destroyed consisted of a quantity of hay, growing grass, the roots of the grass in a meadow, and a hedge fence. The trial court adopted the theory that the measure of plaintiff's damage for injury to the meadow was the value of the growing grass and the cost of restoring the meadow to its former condition. Plaintiff introduced evidence to show the amount of both items. Appellee insists that defendant's exceptions to the evidence showing the cost of restoring the meadow are not sufficient to enable it now to claim, as it attempts to do, that this was not the correct measure of damage; but we think this is not so."

[The ruling of the trial court was affirmed.]

"Plaintiff was allowed to introduce evidence as to the value of the growing grass upon this meadow, and this, with the cost of restoring the meadow, was given the jury as an element of damages. The complaint on this score is that plaintiff was thus awarded double damages. This, we think, is not so. Restoring the meadow meant, and could only have been understood to mean, putting the grass roots in the condition they were before the fire. Clearly, the plaintiff was entitled to recover for the value of the grass, if any, which was destroyed. In a case quite similar to this, where a meadow was destroyed by fire, the Supreme Court of Texas has held that that plaintiff is entitled, in addition to the value of the grass destroyed, to damages for injury to the roots. Railway Co. v. Ayers (Tex.), 8 S. W. Rep. 538. See also Railroad Co. v. Harlin (Neb.), 70 N. W. Rep. 263-268, 36 L. R. A. 417."

On the exclusion of certain evidence the court said: "Before the fire reached plaintiff's meadow, it passed over and burned the meadow of one Vinzant, near by, and defendant sought to show that the roots of the grass in Vinzant's meadow were not injured. This evidence was refused. The fire occurred in October, and in the spring following plaintiff's meadow was plowed up. It was shown that the grass on the two meadows was of equal height at the time of the fire. This was a sufficient showing of similar conditions to warrant the receipt of the testimony. It should have been admitted." Judgment for plaintiff reversed.

In BRENNAN Lumber Co. v. GREAT NORTHERN RAILWAY CO. (Minnesota, June, 1900), 83 N. W. Rep. 137, order denying new trial to

defendant was reversed, the court (per COLLINS, J.), stating the case as follows: "Appeal from an order denying defendant's alternative motion made under the provisions of Laws 1895, c. 320, after a verdict in plaintiff's favor, in an action brought to recover damages alleged to have been caused by a fire set by one of defendant's locomotives. The cause has been here before (79 N. W. Rep. 1032), at which time a like order was reversed, and a new trial granted on the ground that from the evidence it did not sufficiently appear that the fire which caused the damage was traced or identified as having been started by the locomotive. It is obvious that the principal question at the present time, and one which must be disposed of, is whether plaintiff was more successful at the second than at the first trial in its efforts to adduce evidence which would tend to connect the fire which destroyed its property with a fire started by defendant's locomotive. If there was no substantial difference in the testimony, if there was still a failure to trace and identify by evidence the fire which it is contended was set by the locomotive with that which caused the damage, there remains a failure of proof, and the second verdict must be set aside on the same ground and for the same reason as was the first. A verdict in favor of plaintiff a second time, without additional evidence connecting the fires, and fairly establishing that plaintiff's loss was the result of defendant's negli gence, must meet the fate of the first verdict it must be set aside." The syllabus by the court is as follows:

"1. The evidence produced at a second trial of this case (see 79 N. W. Rep. 1032), at which plaintiff again had a verdict, examined and considered. Held, that the plaintiff again failed to sufficiently trace, identify, and connect the fire which destroyed its property with that set out on defendant's right of way, and relied upon as the origin of the one first mentioned.

"2. Held, further, that, in accordance with the provisions of Laws 1895, c. 320, judgment for the defendant should be entered in favor of defendant notwithstanding the verdict; and it is so ordered. "BROWN and LEWIS, JJ., dissenting as to second point in syllabus."

In SCOTT V. KING ET AL. (Sup. Ct. New York, App. Div., Third Dept. May, 1900), 64 N. Y. Supp. 626, appeal from judgment for plaintiff, in action against King and others, receivers of the New York, L. E. & W. R. R. Co., for injuries to plaintiff's lands by fire, judgment was reversed, the opinion by the court (per PARKER, P. J.), stating the case and points as follows:

"Upon the trial of this action the objection was distinctly taken that the defendants' negligence, if any, was not the proximate cause

of the injury to the plaintiff's lands; and, in connection with that proposition, it was pointed out that the fire was carried some two and one-half miles, across the lands of one Joseph M. Page, before reaching the plaintiff's lands. And, inasmuch as no conflict of evidence existed as to that situation, a nonsuit was asked for upon that ground. Such motion was denied, and an exception duly taken.

that case.

"The case of Hoffman against these same defendants, 160 N. Y. 619, 55 N. E. Rep. 401, 46 L. R. A. 672, is an authority to the effect that such motion should have been granted, and I see no reason why this judgment must not be reversed on the authority of The facts in that case were similar to those now before us, and the principle there decided is the one which must control this case. It is urged by the respondent's counsel that chapter 332 of the Laws of 1893 prescribes a different rule from the one adopted by the Court of Appeals in the Hoffman Case. I am not prepared to agree that he is correct in that proposition, but, however that may be, that argument must be addressed to that court. The decision in the Hoffman Case is now controlling upon this court, and, clearly, within the principle there laid down, this judgment cannot stand. Judgment reversed, and new trial granted; costs to abide the event. All concur.'

In MCMILLAN V. WILMINGTON AND WELDON R. R. Co. (North Carolina, May, 1900), 36 S. E. Rep. 129, judgment for plaintiff was affirmed. The court, in its opinion, (per FURCHES, J.) said: "This is an action against the defendant upon the allegation that defendant negligently set fire to plaintiff's lands, by reason of which plaintiff was damaged. Upon the close of plaintiff's evidence defendant. moved to nonsuit plaintiff upon the ground that he had not made a case entitling him to recover. Chapter 109, Acts 1897. As this action was tried before the passage of chapter 508, Laws 1899, the defendant is entitled to have the case reviewed upon its status at the time this motion was made. Purnell v. Railroad Co., 122 N. C. 832, 29 S. E. Rep. 953; Wood v. Bartholomew, 122 N. C. 177, 29 S. E. Rep. 959. We have, therefore, examined the plaintiff's evidence for the purpose of ascertaining whether defendant's motion. should have been allowed. We find that Lewis Byrant testified that when he saw the fire in the morning it was on the right of way. He also testified that the right of way was grassy. Lewis Murphy testified that, 'We had not burnt off the right of way north of Bear Ford that year.' T. C. Carter testified it (the fire) had burned to a pond north of the culvert. Beyond the pond the right of way was covered with brown grass. * I saw

* *