Lamar, J.
1. By direct evidence the plaintiff proved that the-fence and pasture had been damaged by fires caused by sparks, from the defendant’s engines. The statutory presumption of negligence was not rebutted by the testimony of a witness who-stated that he was an engineer and knew that the defendant had equipped its engines with the latest and best appliances; it not. appearing when these appliances had been adopted, or that they were in use when the burning occurred.
2. In a suit against a railroad company for injuries occasioned by its negligence in failing to have proper spark-arresters, the company ought not, of course, to be put to the burden of proving that every engine which had passed over the road during the period covered by the statute of limitations was properly equipped. In order to make its defense it was entitled to a specific statement as to the time when the fires occurred, so as to be able to show that the engine then passing was free from the defect charged. Had the company by demurrer or motion called for such particularity of statement, the court would no doubt have required the plaintiff to amend accordingly. But here the demurrer was not insisted upon. The case went to trial on the general allegations, and the evidence that the fires occurred in November was admissible under an allegation that the damage had been caused'on or about October 27 and 28,1901, and at various other dates during 1899, 1900, and 1901.
3. If the cause of action had been for damages occasioned by a . nuisance originally constructed by a predecessor in title, the de[325]*325fendant as an alienee would not have been liable until 'after notice to abate. Civil Code, §§ 3862, 4763. But the culvert as originally constructed was not a nuisance, nor did its size or character occasion the injury complained of. The petition and the evidence show that the digging of new ditchés by the defendant, and the consequent diversion of water, and the increased flow through the culvert caused the wash and damage to the plaintiff’s farm.
4, 5. The evidence as to the damage to the fences and pasture and the amount of land destroyed by the wash, and the consequent cutting in two of the farm, was conflicting. There was no objection to the character of the evidence offered. Some of the-witnesses for the plaintiff estimated the damages to the fences and pasture by fire at more than $100, and the damage from the water at an equal sum. Those for the defendant estimated the damage in both instances at much smaller figures. The verdict for $90 was supported; and no error appearing, the judgment is
Affirmed.
All the Justices concur.
Free access — add to your briefcase to read the full text and ask questions with AI