Verry v. B., C. R. & M. R.

Servers, J. 1 railroads: of agent: ageiít.pal an As was his - duty the defendant was endeavoring to couple two cars together. The draw-bar of one of them was out of repair, and by reason thereof the plaintiff’s hand was crushed. It was an important and material question whether the defendant had any knowledge that said car was out of repair. It had been standing for several days in the yard at Cedar Rapids, and it was the custom of the defendant through its employes to examine all cars on their arrival. If this car had been examined the fact that it was out of repair could have been readily discov [550] ered. There was no evidence tending to show that it had been moved from the time it arrived, until the plaintiff made the attempt to couple it to another car. When cars were out of repair it was the duty of defendant’s repairers to remedy the defect whatever it was. Mr. George was the foreman or head of the repair department, and he had three assistants, one of whom was Sherman, whose duty it was to inspect and repair broken and defective cars. One Fuller testified that after the accident, and he judged within eight or ten minutes, and at the car, he had a conversation with Sherman. Tie was then asked to state what Sherman said, if anything, as to his knowledge of the condition of the car at that time. This question was objected to but the same was overruled, and the witness answered: “He came down there to the car and I said to him ‘ did’nt you know that this car was in bad order,’ and he said ‘yes;’ said I ‘why did’nt you tell us then of it when we went to couple to it and switch,’ and he said ‘ we was waiting for you to couple to it and switch it back, and then I was going to fix it.’ ” The admission of this evidence is assigned as error. Sherman without serious question, we think, was such- an agent of the defendant that his declarations made in the line of duty and .in relation to matters under his supervision, if made at the proper time, would be admissible as evidence against the defendant. To make the declarations of an agent admissible against his principal, such declarations must be a part of the res gestee. It is said the doctrine is well settled that where the acts of the agent will bind the principal, there his representations and statements respecting the subject-matter will also bind him, if made at the same time and constituting a part of the res gestae. Covington & Lexington R. R. Co. v. Ingels, 15 B. Mon., 637; 1 Green. Evidence, 113. “ The declarations or admissions of an agent are evidence against his principal only when they are made as to a business matter within the scope of his agency, and which is being transacted at the time.” Lafayette and Indianapolis R. Co. et al. v. Ehman, 30 Ind., 83. “An authority to make an admission is not necessarily to be [551] implied from an authority previously given in respect to the thing to which the admission relates.” 1 Green. Ev., § 114. The real difficulty lies in the application of these general principles to the case in hand. It was, as has been said, the duty of Sherman to inspect this car, and had he done so he would have discovered the defect. Whether he did in fact inspect and discover the car was out of repair, there is no evidence tending to show, except liis own declaration. The declarations made by him, however, were in relation to a subject matter within his charge, and so far there is no difficulty. It was the duty of Sherman to inspect and repair the car, and when this was done his duty was at an end. Now it seems to ns his declarations, to be admissible as evidence against the defendant, must have been made while he was engaged in the performance of such duty, and must have been in relation to the subject-matter in his charge. If Sherman had been at the place of the accident at the time it occurred, and had then made the declaration in question, it would not have been admissible against the defendant, unless Sherman was at the time engaged in inspecting or repairing cars. Possibly, at least, this is true. But no such question is before us. Sherman was not at the accident. He came, however, within a few moments; he had no hand in causing it, nor was he engaged in the performance of -any duty for the defendant while there. He was a mere spectator, and as such it must be held he made the declarations in question. We have found no adjudicated case exactly like this, but the following are analágous: Pennsylvania R. R. Co. v. Books, 57 P. St., 339; Lane v. Bryant, 9 Gray, 245; Dome v. Southwark Manufacturing Co., 11 Cush., 205; Bellefontaine R. Co. v. Hunter, 33 Ind., 335; Luby v. Hudson River R. R. Co., 17 N. Y., 131; Cramer v. City of Burlington, 45 Iowa, 627. Counsel for the appellee have cited, as being in. point, Morse v. Connecticut River R. R. Co., 6 Gray, 450. But there is a broad and clear distinction between the two cases. In that case the declarations were made by the conductor or baggage master in relation.to lost baggage, and “ it was part of the duty [552] of those agents to deliver the baggage of passengers and to account for the same, if missing, provided inquiries for it were made within a reasonable time.” In Chicago, Burlington & Quincy R. R. Co. v. Coleman, 18 Ill., 297, the declarations were made by the president of the company in relation to a contract he had. authority to make and adjust, and while endeavoring to effect the settlement of a dispute in relation thereto. For the reasons stated the judgment of the District Court must be Beversed.