Halverson v. Chicago, Milwaukee & St. Paul Railroad

Canty, J. Defendant’s railroad runs through plaintiff’s farm. Two •of his colts escaped through a broken and imperfectly fastened gate in the fence of defendant along its track, and were killed, and he brings this action to recover damages therefor. The question of defendant’s negligence- and plaintiff’s contributory negligence were for the jury, but we are of the opinion that there was an error in the admission of evidence. Plaintiff was allowed to testify, against defendant’s objection, that the section boss, Johnson, told him that the colts were' worth $75 .apiece. There was no evidence that the section boss had any authority from the company to value the colts, or that the question of the valuation of the colts or the settlement of the loss was a part of his business, or within the scope of his authority. It is true that the witness stated that the section boss said that “the interest in the company required him that he should state about what the cattle were worth in such cases.” But the declarations of an agent are not competent to prove his authority. 2 Greenl. Ev. (14th Ed.) § 63, note b. It cannot be presumed that a section boss has any more authority than what is necessary for the discharge of the duties ordinarily belonging to his position. If he had any further authority, it should be proved by competent evidence. The admission of this testimony was error. Wall v. Des Moines & N. W. Ry. Co., 89 Iowa,-, (56 N. W. 436;) Doyle v. St. Paul, M. & M. Ry. Co., 42 Minn. 79, (43 N. W. 787.) The order denying defendant’s motion for a new trial is reversed, .and a new trial granted. Buck, J., absent, sick, took no part. (Opinion published 58 N. W. 871.)