Chaffee v. Rutland R. Co.

• Decision Date: 14 July 1899
• Citation: 45 A. 750,71 Vt. 384
• Parties: CHAFFEE et al. v. RUTLAND R. CO.
• Court: Vermont Supreme Court

45 A. 750

71 Vt. 384

CHAFFEE et al.

v. RUTLAND R. CO.

Supreme Court of Vermont. Rutland.

July 14, 1899.

Exceptions from Rutland county court; Start, Judge.

Action by George T. Chaffee and another against the Rutland Railroad Company. Judgment for plaintiffs, and defendant excepts. Affirmed.

Geo. E. Lawrence and Butler & Moloney, for plaintiffs.

W. W. Stickney and J. G. Sargent, for defendant.

TAFT, C. J. This action is brought to recover damages for the destruction of the plaintiffs' property by fire communicated by the defendant's engine. It is alleged in the declaration that the defendant so carelessly, negligently, and imprudently managed its engine that the plaintiffs' property was destroyed by fire communicated therefrom. There is no allegation that the defendant's engine was not properly equipped with a suitable spark arrester and ash pan, nor that the defendant permitted dry grass, weeds, etc., to accumulate on its roadbed. The defendant objected to the proof of such facts (that is, that the engine was not equipped with a suitable spark arrester and ash pan, and the accumulation of dry grass and weeds on its roadbed), and also to the charge that, if such facts were established, the plaintiffs had a right to recover. The members of the court are not agreed in respect to the case as shown by the record, but concur in holding that if the declaration had contained the allegations of negligence in the construction or condition of the engine in the respects named, and in the accumulation of dry grass and weeds, there was no error in the admission of the testimony, nor in the charge of the court. The question arises whether this court will permit such an amendment to be now made, after judgment The cause was fully tried, as though such allegations were in the declaration. It is expressly stated in the exceptions that both parties gave testimony pro and con upon the questions of the defective spark arrester and ash pan, and the accumulation of dry grass and weeds. Such testimony was admissible upon the question of whether the fire was communicated to the plaintiffs' property by the defendant's engine. It is apparent from the exceptions that the questions were fully litigated. The course of the trial was the same as if the allegations had not been omitted, and an amendment of the declaration will present no new Issue, nor require any different proof. V. S. § 1148, authorizes a court at any time to permit either of the parties to amend a defect in...