#### W. A. Kreitzer, Appellee, v. Lake Erie & Western Railroad Company, Appellant.

(Not to be reported in full.)

Abstract of the Decision.

1. Appeal and error, § 1236 * — when insufficiency of declaration cannot be complained of on appeal. Where it does not appear from the record that a declaration was challenged in the trial court by demurrer or by motion in arrest of judgment or in any other way, but it was pleaded to and evidence offered to rebut its allegations, its insufficiency cannot be complained of on appeal.

2. Railroads, § 932* — when evidence supports verdict for plaintiff in action for damages for loss of property by fire. In an action to recover for the loss of corn alleged to have been destroyed by a fire set by a spark from defendant’s locomotive, evidence held sufficient to support a verdict for plaintiff.

Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the April term, 1917.

Affirmed.

Opinion filed October 11, 1917.

Rehearing denied December 1, 1917.

Statement of the Case.

Action by W. A. Kreitzer, plaintiff, against the Lake Erie & Western Railroad Company, defendant, to recover for com alleged to have been destroyed by a fire caused by a spark from a locomotive owned and operated by defendant. Prom a judgment for plaintiff for $717.40, defendant appeals.

Cloud & Thompson, for appellant.

Schneider & Schneider, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Graves

delivered the opinion of the court.