presented by the pleadings and proofs, are that the number of census children in Empire school-district is less than 400; that at the general election in November, 1882, W. J. Smyth was elected school trustee in said district for the term of four years from and after January 1, 1883; that at the general election in 1884, J. P. Woodbury and John Christiansen were elected trustees, the former for a term of four years, and the latter for two years; that said parties qualified by taking the regular oath of office before an officer authorized to administer oaths, and that their oaths of office were indorsed upon their certificates of election; that on the second Saturday of May, A. D. 1885, at an election held pursuant to the provisions of the supplemental school act, approved March 12, 1885, (St. 1885, 111,) the respondents, Horace A. Bowley, George Horton, and A. D. Smith, were elected school trustees in said district for the respective terms of one, two, and three years from the first day of September, A. D. 1885; that they received their certificates of election on the ninth of May, and the oath of office was administered to them by one of the judges of the school election; that on the third day of September, A. D. 1885, S. H. Wright, county superintendent of schools in Ormsby county, believing that a vacancy existed, appointed J. P. Woodbury, W. J. Smyth, and John Christiansen school trustees of said school-district; that on the fifth of September, 1885, W. J. Smyth and John Christiansen signed and subscribed the official oath, and it was sworn to by them before a justice of the peace; that on the twelfth day of September, 1885, J. P. Woodbury qualified by taking the official oath before a notary public; that the respective oaths of office were attached to their certificates of appointment; that subsequently, on the twenty-first of September, 1885, after the information in this case had been filed with the clerk of this court, Horace A. Bowley and A. D. Smith went before a notary public and had the official oath administered to them and annexed to a paper containing what purported to be a copy of their certificates of election.

Counsel for the respective parties discussed the question of the construction and constitutionality of the supplemental school act; but it is unnecessary for us to consider either of these questions in deciding this case. The judges of the election had no authority to administer the official oath of office to the elected school trustees. The only oath which a judge of the election could administer is the one prescribed in the statute to a voter when challenged. St. 1885, 113, § 9. If the supplemental school act is unconstitutional, the respondents would have no right whatever to the offices of school trustees, and Woodbury, Smyth, and Christiansen would be entitled to the offices by virtue of their election and qualification under the old law. If the supplemental school act is constitutional, respondents would not be benefited thereby, because they failed to qualify as required by law, and Woodbury, Smyth, and Christiansen would be entitled to the offices by virtue of their appointment.

The question whether S. H. Wright qualified as superintendent of schools according to the provisions of the statute cannot be inquired into in this proceeding. It was enough to show that he was elected and entered upon the duties of this office, and that he has ever since been exercising the duties thereof.

The objections made to the effect that the official oaths of Woodbury, Smyth, and Christiansen were attached to, instead of being indorsed upon, the back of their certificates of appointment, or indorsed on the face, instead of the back, of their certificates of election, are without merit. Brown v. Foster, 2 Metc. 155.

The respondents having failed to show any legal right to the offices of school trustees, a judgment of ouster must be entered against them, with costs. It is so ordered.

LEONARD, J.: I concur in the judgment.

(67 Cal. 518)

EME

SUPREME COURT OF CALIFORNIA.

BUTCHER V. VACA VALLEY R. Co. (No. 7,883.)1

Filed September 26, 1885.

1. NEGLIGENCE-FIRE CAUSED BY LOCOMOTIVE-DAMAGES FROM SPREADING OF. Whether the negligent starting of a fire in one field, which fire communicates with the field of another person, is prima facie evidence that the damage caused in the latter field is the natural result of the defendant's negligence in the first field is a question for the jury.

2. DAMAGE FROM FIRE--EVIDENCE-VARIANCE.

Where it is sought to recover damages for a loss by fire caused by sparks from defendant's locomotive, evidence is admissible to show that the fire commenced on land adjoining that of the plaintiff, and extended to his lands, under an allegation that the fire from defendant's locomotive was suffered to escape, and did escape, and by reason thereof came upon the land of plaintiff. 3. FIRE CAUSED BY LOCOMOTIVE-EVIDENCE OF LIKE FIRES.

In an action to recover damages for fire caused by defendant's locomotive, a witness may testify that shortly after the fire complained of he saw a fire in a field near defendant's road, just after the same locomotive which caused the fire in plaintiff's field had passed.

4. NEGLIGENCE-PRESUMPTIONS-FAULTY CONSTRUCTION OF LOCOMOTIVE.

In an action for damages for a fire caused by a locomotive, negligence is presumed, if it appears that the locomotive from which the fire escaped was not built so as to retain its sparks, or was otherwise faulty or insufficient in construction, and evidence is admissible to show that after the fire certain repairs were made on the spark-retaining apparatus, because it had been so defectively built.

In bank. Appeal from superior court, county of Solano.
Jos. McKenna, for appellant.

G. A. Lamont and Wm. Van Dyke, for respondent.

MCKINSTRY, J. No exception was taken to any portion of the charge of the court to the jury. The complaint alleges that, on a certain day, the defendant was engaged in running its trains on its railway, "and while so engaged, by reason of the carelessness and negligence of said company and the engineers and employes thereof, the fire from the engine and locomotive of said road was suffered to escape, and did escape, and by reason thereof came upon the land of the plaintiff herein, and consumed," etc. There was evidence to prove that the fire commenced on the land of one Wilson, and from thence spread and extended to the land of plaintiff. The defendant, in due form and at the proper time, objected to any evidence "being admitted under these pleadings which tends to establish, show, or indicate any other initial point of the fire than that alleged in the complaint." The objection is that there is a substantial variance between the averment of the complaint and the evidence offered. The averment is that the fire, having escaped, "came upon the land" of the plaintiff, and consumed and destroyed his crop, etc. We are not prepared to say that the mere fact that fire, arising out of the negli

1 See note at end of case.

gent act of a defendant on the premises of one proprietor, has extended to the premises of another, always and necessarily gives a cause of action to the latter. As was said in Henry v. Southern Pac. R. Co., 50 Cal. 182:

"It is said that the nonsuit should have been granted, inasmuch as the fire was not kindled in plaintiff's field, but in the field of one Cagney, an adjoining proprietor, from which it extended into the eld of the plaintiff. The legal proposition involved in the foregoing statement is that if by negligence a fire shall commence on the premises of one proprietor and spread from thence to those of another, the latter shall never have his action against him guilty of the negligence. We think this proposition cannot be maintained. To refute it, it is not necessary to establish the counter-proposition that the adjoining proprietor thus injured shall always recover. It may be assumed, perhaps, that a city fire which has its origin in one building will not, ordinarily, extend throughout a block; and yet a jury may be justified in saying, when a fire is started in a field which constitutes a portion of a larger tract of dry grass or corn fully ripe, that it will usually be driven into another field, from which the first is separated only by a fence of boards. It is a rule applicable to all cases of mere negligence that the wrong-doer is liable for the proximate, and not for the remote, consequences of his default. A long series of judicial decisions has defined proximate, or immediate and direct, damages to be the ordinary and natural results of the negligence, such as are usual, and as, therefore, might have been expected; and this includes in the category of remote damages such as are the result of an accidental or unusual combination of circumstances which would not be reasonably anticipated, and over which the negligent party has no control. In Ryan v. New York Cent. R. Co., cited by appellant's counsel, the court held, when a railroad company negligently set fire to its own woodshed and the sparks communicated the fire to and destroyed the house of another proprietor 130 feet from the shed, that no cause of action existed in favor of the owner of the house. 35 N. Y. 210. In that case no new principle was involved. The learned judge who delivered the opinion placed the decision on the ground that the burning of the house was not to be expected from the first firing. See Webb v. Rome, W. & O. R. Co., 49 N. Y. 420. It would be strange if, among the numerous cases in which resort has been had to the rule of the law of negligence to which we have referred, courts had not differed in their application of the rule; but for the purposes of this action it may be admitted that the rule was properly applied in Ryan's Case. We are still confident, considering the long dry season of California and the prevalence of certain winds in our valleys, that it may be left to a jury to determine whether the spreading of a fire from one field to another is not the natural, direct, or proximate consequence of the original firing."

It is laid down by Shearman & Redfield:

"One who, * * *by want of ordinary care, sets fire to land which does not belong to him is responsible for all the proximate consequences of his act, not only to the owner of the land on which the fire begins, but also to the owner of any other property which the fire may reach in its spread." On Negligence, 330.

But the case referred to by them, Finley v. Langston, 12 Mo. 120, merely holds that (under a statute which declared that whoever willfully sets on fire a prairie or woods, and that fire occasions damage to another, shall be liable to a certain penalty) a defendant was liable

who started a fire on his own premises, which extended to those of his neighbor.

It is not necessary here to decide that the mere fact that the fire commenced in the field of one man and extended to another would establish prima facie that the damage done in the second field was an ordinary and natural result of the defendant's negligence. That was a matter to be determined by the jury in view of all the circumstances proved. It is enough to say such damage might be an ordinary and natural consequence. It will be observed that no objection was made to the sufficiency of the complaint by demurrer, or otherwise. There is no suggestion that the mere statement in the complaint of facts tending to prove that the injury done to the plaintiff was caused by the negligence of the defendant, is not a direct averment that the defendant set fire to the plaintiff's crop, or that the destruction of his crop was the direct consequence of the negligence of defendant. If the complaint was defective, we think the defect was cured by verdict. The averment is that the fire started by the defendant came to plaintiff's land. This is not an allegation that it began on his lands, and we think the averment was sustained by evidence that it came to his lands from the lands of another. cise objection of variance was not well taken. Pac. R. Co., supra, the court also said:

The preIn Henry v. Southern

"We think there was no error in permitting proof that, prior and subsequent to the fire which produced the injury complained of, other fires were kindled by defendant's engine. The evidence was confined to fires caused by the same engine in the same vicinity, and about the same time."

At the trial of this cause a witness, Sherman Marshall, was permitted, notwithstanding the objection of defendant, to testify that, about two weeks after the fire which is alleged to have burned the plaintiff's property, (at a place from a quarter to one-half a mile distant from the spot where the fire in question here was kindled,) he saw fire in a field near the defendant's road, just after a train of cars had passed, drawn by the same engine from which, as claimed, the fire escaped which caused the damage sustained by plaintiff. Evidence that sparks and burning coals were frequently dropped by engines passing upon the same road upon previous occasions has been held to be relevant and competent to show negligence and to make it probable that the plaintiff's injury proceeded from the same quarter. Shear. & R. Neg. 333; Field v. New York Cent. R. R., 32 N. Y. 339; Sheldon v. Hudson River R. Co., 14 N. Y. 218; Henry v. Southern Pac. R. Co., supra. So, evidence that sparks have frequently been carried by the wind, etc. Sheldon v. Hudson River R. Co., supra; Piggot v. Eastern Counties Ry. Co., 3 C. B. 229. As was said in Henry v. Southern Pac. R. Co.:

"Evidence is admissible if it is of a circumstance which, with other circumstances, may bring home to the mind a conviction of the main matter in isThere may be difficulty in many instances in drawing the line of sepa

sue.