primary fact that defendant's train threw out and started the fire in question.
3. Party Using Right of Way Liable for Negligent Acts Done Thereon—Evidence of User.
Where the answer admits that the defendant at the time in question owned and operated the railroad in question, and where the only question at issue was as to the width of the right of way of such railroad, held, that oral evidence was properly introduced to show the width of the strip of land upon each side of the track which defendant was occupying and using for right of way purposes, at or just prior to the date of the fire in question. Held, further, that defendant would be responsible for any act of negligence committed by it on the right of way which it was in possession of, and actually using for right of way purposes, whether it was or was not at the time seized of the title of such right of way, or whether it had or had not the right to the possession thereof.
4. Pleading—Contributory Negligence—Harmless Error—Negligence per se.
Where the complaint omitted to allege due care on the part of the plaintiff, and defendant’s counsel objected to the introduction of any evidence in support of the complaint for that reason, claiming that such omission was fatal, and that the complaint did not state a cause of action by reason of such omission, and that the trial court overruled the objection, held, that such ruling was not error; but, upon such complaint, evidence was introduced against defendant’s objection tending to show that the plaintiff had established a fire-break, and had acted prudently and with due care to prevent fires from coming upon his premises. Held, that while such evidence was not necessary on plaintiff’s part to make out a prima facie case, the introduction of such evidence was not error which could prejudice the defendant’s case, and hence the court will not grant a new trial, for the reason that such unnecessary evidence was introduced. Held, further, that, if the plaintiff had not established any fire-break, such omission would not constitute negligence per se; but that in such case the question of whether such supposed omission would or would not constitute negligence would be a question of fact for the jury to determine under proper directions from the trial court. The question in such case would turn upon the inquiry as to whether or not the omission under the circumstances amounted to negligence. Such a question usually would be one of pure fact.
5. Negligence of Railroad Company—Inflammable Material on Right of Way.
The defendant requested the trial court to give the jury the following instruction. “If you find from the evidence that the defendant
