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behalf of the company, insisted that the law recognised different degrees of negligence, and it was legitimate for a common carrier to limit his liability to losses or damage from all causes except gross'negligence, as was done in this case by express contract. I think an examination of the authorities will show that the distinctions between “gross” pegligence and ordinary negligence are too vague and shadowy to be of any practical importance in the adjudication of questions of this sort.
The tendency of judicial opinion is adverse to any distinction between gross and ordinary negligence. In each case, the negligence, whatever epithet we give it, is failure to bestow the care and skill which the situation demands, and hence it is more strictly accurate to call it, simply, " negligence.” The decided preponderance of authority is in favor of abolishing the vague and uncertain distinctions between the different degrees of negligence, and to hold the public carrier bound whenever it is shown that the loss or damage is occasioned by negligence at all, whether gross or ordinary; or, in other words, the carrier is bound to ordinary diligence. See i Smith Lead. Cas. (7th Am. ed.) 453; Story on Bailments, $ 571; Wyld v. Peckford, 8 M. & W. 460; 11 Id. 115; 2 Q. B. 661 ; 14 How. 486; 17 Wall. 383.
I am, therefore, of opinion that the Circuit Court of Wythe county did not err in giving the instructions which it gave the jury, or in refusing those which it refused to give, both sets of instructions presenting, in different forms, the question we have been discussing, and the said court having decided that the railroad company cannot by express contract exonerate itself from liability for loss or damage occasioned by the negligence (whether gross or ordinary) of its agents, servants ur employees.
There are now two other grounds of error assigned which remain to be noticed. First, as to the demurrer to the declaration ; second, as to the admissibility of certain evidence offered by the plaintiff and admitted by the court.
As to the first, it is sufficient to remark, that a careful inspection of the declaration shows that each count is a count in assumpsit, and no one of them in tort; so that, in fact, there is no misjoinder of counts as claimed by the counsel for the plaintiff in error, and the Circuit Court was right in overruling the demurrer.
The next ground of error assigned presents a more serious question, and requires a more particular notice. It is raised by the 3d, 4th and 5th bills of exception taken by the defendants, and presents the question whether the evidence therein set forth was competent to go to the jury.
It was proposed by the plaintiff to prove by the witness Parish that he heard a negro brakesman, who was on the train with plaintiff's cattle, say, “that, had it not been for the brake on the East Tennessee car, the train would have run off with them coming down the Allegheny moun. tains.” This remark of the brakesman was made before the accident, and at Salern, a distance of forty-two miles from the scene of the disaster. It was further proposed, on the part of the plaintiff, to prove, by the witness Crockett, that he heard one Burroughs, whu was a section-master on defendants' road embracing the point where the accident occurred, say that "he (Burroughs) expected an accident on that part of the road where said accident did take place.” This conversation took place some time after the accident happened, and when Crockett and the plain. tiff were coming from Lynchburg, on a special train, back to the point of the accident; the said section-master, Burroughs, being on said special train with them.
The question is, whether these declarations of the brakesman and section-master were competent to go to the jury. The court below admitted the evidence. Was this error? It is insisted that these declarations were admissible, though hearsay, as the declarations of agents. It is true that, where the acts of the agent will bind the principal, there his declarations, representations and admissions respecting the subject-matter will also bind him, if made at the same time and constituting part of the res gestæ. They are of the nature of original evidence, and not of hearsay, the representation or statement in such cases being the ultitimate fact to be proved, and not an admission of some other fact. The party's own admission, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of his agency in regard to a transaction then depending et dum fervet opus. It is because it is a verbal act and part of the res gestæ that it is admissible at all. It is to be observed that the rule admitting the declarations of the agent is founded upon the legal identity of the agent and the principal, and the declaration of the agent, to be admissible, must be part of the res gestæ : 1 Greenleaf, Redfield's edition, sects. 113, 114; Story on Agency, sects. 134-137.
But it is argued, with some force, that these general rules do not apply to corporations which do their business entirely through agents, and that companies engaged in the transportation of freight and passengers are responsible for the declarations of their agents and employees, through whose instrumentality their whole business is transacted. This is a striking view of the subject, and some few cases, it is admitted, may be found adopting this view. But Chief Justice REDFIELD, in his edition of 1 Greenleaf, p. 135, sect. 114 (a) and notes, has collected the authorities, and says: "In general such companies are not responsible for the declarations or admissions of any of their servants beyond the immediate sphere of their agency, and during the transaction of the business in which they are employed. Thus the declarations of the conductor of a railway train as to the mode in which an accident occurred, made after its occurrence, or those of an engineer made under similar circumstances, are not admissible.” This is authority exactly in point. See, also, Griffin v. Montgomery Railroad Co., 26 Geo. 111; Robinson v. Fitchburg Railroad Company, 7 Gray 92.
In Leedy v. The Hudson River Railroad Company, 17 New York Court of Appeals Reports 131, it was held, that the declaration of the driver of a car, after the car had stopped, assigning the reason why he did not stop the car and thus prevent the injury to the plaintiff while crossing the street, that he could not stop the car because the brakes were out of order, being made after the injury was inflicted and the transaction terminated, is not admissible against the company in whose employ such driver was, it being mere hearsay. See, also, to this same effect, Moore v. Meacham, 10 N. Y. 207; Lane v. Bryant, 9 Gray 245.
I think, therefore, upon principle and authority, that the declarations of the brakesman and section-master, made at the time and under the circumstances when made, were not a part of the res gestæ, but mere . hearsay, and ought to have been excluded. There was no reason why
the brakesman and section-master should not have been examined as witnesses, and their declarations, not being made at such time and under such circumstances as to make them a part of the res gestæ, were mere hearsay.
It is argued, however, that the evidence, if excluded, would not have changed the verdict of the jury, as the case was clearly made out without it. It is impossible for this court to estimate the effect which this evi. dence had on the minds of the jury, and it would be going beyond our legitimate function to enter upon any such vain speculation.
The court erred in admitting the evidence, and it is our province, without speculating how the evidence might have affected the minds of the jury, simply to declare it inadmissible, and, for this error of the court, to reverse the judgment, and to remand the cause to the said Circuit Court, for a new trial, to be had there in accordance with the principles declared in the foregoing opinion.
ABSTRACTS OF RECENT AMERICAN DECISIONS.
SUPREME COURT OF ILLINOIS.1
SUPREME COURT OF KANSAS.?
SUPREME COURT OF PENNSYLVANIA."
Action. See Contract; Fraud. Successive Suits for accruing Damages.--For malpractice by a physician in setting a broken arm, successive suits cannot be brought from time to time, as damages in the future may be suffered, but the recovery is once for all, and may embrace prospective as well as accrued damages : Howell v. Goodrich, 69 Ill.
AGENT. What is necessary to make the act of an Agent done without authority binding upon his Principal.—To make the act of an agent, done without the authority of his principal, binding upon the latter, it is necessary to show that he subsequently ratified and adopted the act; and to make such ratification and adoption effectual as against the principal, it must be shown that he had previous knowledge of all the material facts; and if he assented while ignorant of those facts, he is at liberty to disaffirm the transaction when informed of them: Bannon v. Warfield, 42 Md.
Where an agent lends the money of his principal upon a security which proves to be insufficient, the judgment of such agent as to the value of the security at the time it was taken is not conclusive ; evidence may be introduced, as reflecting on the question of the want of good faith and reasonable care in making the loan and taking the security, to show
I From Hon. N. L. Freeman, Reporter; to appear in 69 Illinois Reports. 2 From Hon. W. C. Webb, Reporter ; to appear in 15 Kansas Reports. 3 From J. Shaaf Stockett, Esq., Reporter ; 'to appear in 42 Maryland Rep. * From P. Frazer Smith, Esq., Reporter ; to appear in 78 Pa. State Reports.
that the value of the security was very much less than the estimate placed thereon by the agent: Id.
Proof of Authority. While it is competent to prove a parole agency and its nature and scope by the testimony of the person who claims to be the agent, and to prove any parol authority by the testimony of the person who claims to possess such authority; yet it is not competent to prove the supposed authority of an agent, for the purpose of binding his principal, by proving what the supposed agent has said at some previous time ; nor is it competent to prove a supposed authority of any kind, as ugainst the person from whom such authority is claimed to have been received, by proving the previous statements of the person, who, it is claimed, had obtained such authority: Howe Machine Co. v. Clark, 15 Kans.
ATTORNEY. Costs and Expense growing out of his Wrongful Act.—Where an attorney, employed to transact certain business for his client, procures a third person to be invested with the legal title to property belonging to his client without any consideration being paid therefor, and the arrangement serving no beneficial purpose to his client, and he afterwards incurs expense in costs and attorney's fees in getting the legal title in himself instead of his client, he will have no legal claim to be reimbursed or allowed for such expenses, on bill for an account by his client against him: Hughes v. Zeigler, 69 Ill.
AUCTION. See Title.
BAILMENT. Pledge—A security for whole Debt and every part of it.—In all cases a pledge is understood to be a security for the whole and for every part of the debt or engagement, unless it is otherwise stipulated between the parties. If several things are pledged, each is deemed liable for the whole debt or other engagement, and the pledgee may proceed to sell them, from time to time, until the debt or other claim is completely discharged. If anything perishes by accident or casualty, without his fault, he has a right over the residue for his whole debt or other duty: Ballwin v. Bradley, 69 Ills.
COMMON CARRIER. When Liability of ceases, and that of Warehouseman attaches.—Where goods have reached their destination either in the night time or on a Sunday, or where, for any other reason, the consignee is not ready to receive them on their arrival, and the carrier puts them in store, or in the charge of competent and careful servants, ready to be delivered when called for, the carrier's liability as insurer ceases, and he will thereafter be liable only as warehouseman, and if the goods are destroyed by fire without fault on his part, he will not be responsible : Rothschild v. Mich. Central Railroad Co., 69 Ill.
CONSTITUTIONAL LAW. See Evidence. Local Option Laws- Delegation of Legislative Power-Nature of a License to sell Liquor.—Section 1 of the Act of 1874, ch. 453. provided for an election to be held on the second Tuesday in July 1874, at which the voters of the several election districts in the counties named, should cast ballots “for the sale of spirituous or fermented liquors," or "against the sale of spirituous or fermented liquors;" and directed the judges of election should make return of the votes to the judges of the Circuit Court, who should make proclamation of the result. Section 2 enacted that if it should be found by the returns of the judges of election, and proclamation of the judges of the Circuit Court, that a majority of the votes, in any district of either of the said counties, * * * had been cast against the sale of spirituous or fermented liquors, that then it should not be lawful for any person or persons, or body corporate, to sell spirituous or fermented liquors, in
district of either of said counties voting by a majority against selling the same. Section 3 prescribed the penalty for a violation of the act; and section 4 provided that the act should take effect immediately after it should have been determined by a majority of the people in any one or more election districts of the counties named, whether or not spirituous or fermented liquors should not be sold, as before provided for : Held, that this act was constitutional and valid; its going into effect and becoming operative, being made to depend upon the result of a popular vote, was not a delegation of legislative power to the people : Fell v. The State, 42 Md.
The legislature has the undoubted power to prohibit the sale of spirituous or fermented liquors in any part of the state, notwithstanding a party to be affected by the law may have procured a license, under the general license laws of the state, which has not yet expired. Such a license is in no sense a contract made by the state with the party holding the license. It is a mere permit, subject to be modified or annulled at the pleasure of the legislature, who have the power to change or repeal the law under which the license was granted : Id.
CONTEMPT. See Witness.
CONTRACT Action-Mutual Mistake- Rescission.-Government bonds were deposited in a bank; the depositor alleged that the bank bought them from him at par, fraudulently informing him that there was no premium on them, when there was, within the knowledge of the bank. The depositor sued the bank for the premium and declared in the common money counts : Held, that the depositor could not recover on those counts: Sankey's Executors v. First Nat. Bank of Mifflinburg, 78 Pa.
If the bonds were purchased by the bank in good faith at par, although they were then selling in the market at a premium, of which both parties were ignorant, the depositor could not, on the ground of mutual mistake, recover the bonds or the premium on them : Id.
The mistake or ignorance of the parties as to the premium was not of the essence of the contract, and did not avoid the sale : ld.
Rescission-Contagious Disease.-D. leased to M. for one year all the arable land on the farm on which D. then resided. D., on his part, was to furnish everything and board M. for the year at his house. M., on his part, was to perform all the labor in raising the crops on said land. D. was then to have two-thirds of each crop raised on said land and M. one-third thereof. At the time said lease was entered into, and subse