concurring.
I concur in the result reached in the opinion of the majority, but desire to say that I do not think that, under *661the circumstances of this case the averment that the fire was started within the right of way is material in so far as the statement of facts constitutes a cause of action is concerned. I believe the petition would be good without the allegation. If I am correct in this, the fact that defendant knew of the true conditions through the report of a proper employee, there could be no surprise, and therefore no error, even if the matter had been properly presented to the district court.