Westing v. Chicago, Burlington & Quincy Railway Co.

Action to recover damages by a fire alleged to have been caused by the negligence of the defendant. The plaintiff had the verdict and judgment, and the defendant has appealed.

One of defendant’s assignments of error, and perhaps the principal one, is that there was a fatal variance between the plaintiff’s allegations of negligence on which he sought to recover and the proof contained in the record. The charging part of the plaintiff’s petition is, in substance, as follows: That on or about the 5th day of November, 1907, the defendant, contrary to its duty in that regard, carelessly and…