108 Ky. 47 | Ky. Ct. App. | 1900
Opinion- of ti-ie court by
Reversing.
In the original petition in this- action appellee sought to recover damages of appellant for- having recklessly, carelessly, and negligently run its engine and train of cars over his colt, by reason of which' it was: fatally injured', and subsequently killed by the agents of the defendant. By an amended petition appellee alleges “that he was not present when the colt was crippled,, but that he1 had been informed that the defendant company ran its train over and crippled the colt, as alleged in his original petition, and which he believed to be true; but, if mistaken in this, he says that the defendant, at the time the colt was crippled, was maintaining a cattle guard on the line between the field where said colt was being pastured and the land of the adjacent owner, and that the defendant erected, kept, and maintained said cattle guard in an unskillful, careless-, and reckless manner, by making a deep hole or pit, and then placing rails or slats over the top thereof so far apart that stock could and did fall into- said pit; and. that said colt fell into and through said1 cattle guard and pit, and' in that way was crippled, and then killed by defendant company, as- alleged in his original petition; that said colt would not and could not’ have been crippled but
A number of alleged errors occurring on the trial are relied on for reversal. First, it is insisted that the court erred to the prejudice of the defendant in permitting ap-pellee to file each of the amended petitions, to which appellant at the time objected and, excepted; and it is especially insisted that the second amended petition sets up a distinct and new cause of action. The gist of the action upon which recovery is sought is for the death of
It is insisted that the court erred in admitting as evidence in chief statements made by J. D. Perry, section foreman, as to the condition and construction of the cattle guard, which were prejudicial to defendant, and' which were objected and accepted to at the time. Admissions made by an agent while acting within the scope of his authority, and within the legitimate province of his delegated powers, are, by the universal rules of evidence, admissible as against the principal, not as admissions or declarations merely, but as parts of the res gestae; hence only such as accompany the transactions in which the agent acted can be proven. There is no testimony that the section boss was charged with the construction of this cattle guard, nor that it was out of repair. The fault with it, if any, was that of original construction, and the statements of the section boss as to whether it was properly 'constructed, made out of court, and to a third party, were at best mere opinions or conclusions of his, and could not be introduced as evidence in chief against appellant, and the court erred in admitting it.
Another ground relied on for reversal is that, the court erred in refusing to give a peremptory instruction to find for defendant, as it is insisted that there was no testimony which conduced to show that the injury to appellee’s colt was occasioned by any negligent or defective con
In the progress- of the trial, appellee offered to prove by a number of witnesses that the defendant had allowed a large amount of grass and weeds to grow over, through, and around this cattle guard, until it was completely hidden from view, and that it could only be discovered, on this account, when you came very close to it. It was the duty of the defendant to have maintained the cattle guard in such condition as to attract the notice of. live stock.