Central Branch Union Pacific Railroad v. Butman

The opinion of the court was delivered by Valentine, J.: The only grounds urged for reversal in this case are, that the plaintiff below (defendant in error) was [641] permitted on the trial in the court below to introduce improper evidence, and that all the evidence taken together did not prove the plaintiff’s cause of action. It would be an inexcusable waste of time for us to comment •at length upon the several points made by counsel for plain-biff in error (defendant below); hence, we shall do nothing more than merely to refer to them, and decide them. Under the act of 1874, “relating to killing or wounding stock by 'railroads,” (Comp. Laws of 1879, pp. 784, 785,) a demand must be made of the railroad company for the value of the stock killed, or for damages for injuries thereto; but this demand “may be made of any ticket agent or station agent of such railway company,” (§3 of said act,) and the demand may be made orally, and not in writing. Hence, when such a demand is made, what the agent says at the time concerning the matter may be given in evidence against the railroad company, in an action brought by the owner of the stock against the railroad company for injuries done by the company to his stock. The agent’s statements made at such a time, and concerning such matter, are admissions within the scope of his authority, and are a part of the res gestee; and ■on the trial of the case, where a proper oral demand is first proved, and no evidence is at any time introduced tending to ■disprove the same, it is not material error .for the court to permit the plaintiff to show by incompetent evidence that a written demand was also made. We therefore do not think that the court below materially erred with respect to admitting evidence concerning a demand, and what was said at the time. The evidence introduced on the trial, showing what Beller .said, was irrelevant and incompetent, but we do not think that it could have prejudiced the substantial rights of the-defendant below, and hence it was immaterial. The evidence contained in said written demand .concerning the appraisement of the cow (for the injuries to which this suit was brought), we suppose was incompetent. But still, each of [642] tbe appraisers was afterward introduced as a witness, and testified that the cow was worth $30 — just the amount at which said written demand showed that the appraisers had formerly appraised her; and all the other evidence introduced in the case upon that subject tended to show that the cow was worth that amount. Hence, we do not think that any material error was committed, as said evidence was not substantially prejudicial to the defendant’s rights. We do not think that the court below erred in permitting the letters of W. F. Downs, the general superintendent of the. railroad company, to be introduced and read in evidence. They were objected to generally for incompetency, irrelevancy, and immateriality. The subject-matter thereof was within the general scope of the superintendent’s authority; and the contents thereof were principally admissions of facts, and were not merely offers to compromise. Of course it is improper to introduce in evidence a mere offer to compromise; but admissions of facts may be so introduced. And therefore these letters were properly admitted. The court below did not err in permitting a witness to testify that he “looked about and saw fiair on the ties; the first tie had a lot of hair on it, and the second one not so much, and so on,” as indicating that the injured cow had •-been pushed along the railroad track by the company’s engine. Such was proper evidence. We think there was sufficient evidence to authorize the court below and the jury to find that the plaintiff’s cause of action was proved. Not perceiving any substantial error committed by the court below, the judgment of the court below will be affirmed. All the Justices concurring.