83 Minn. 212 | Minn. | 1901
The plaintiff’s alleged cause of action, as stated in her complaint, is substantially this: She is the widow of Henry Parker, deceased, and the administratrix of his estate. Her intestate was a brakeman in the employ of the defendant, and on the evening of September 10, 1896, he voluntarily became so drunk as to be insensible of the dangers attending the performance of his duties as such brakeman upon the freight train of the defendant, and
It is claimed on behalf of the plaintiff that defendant is liable because it did hot take active measures to protect the deceased from the consequences of his own voluntary intoxication while upon one of its freight trains as a brakeman. It is not claimed that the defendant, by its employees or otherwise, did or omitted to do any act which caused the injury, but the sole claim is that the defendant was guilty of actionable negligence, because it did not stop its train and remove the deceased to a place of safety, or take other measures to protect him from imminent danger due to his intoxication. We assume, \yithout so deciding, that if the conductor or brakeman was fully apprised of the intoxicated condition of the deceased and his consequent peril, it was his duty to take active and reasonable measures for his protection. But, in any event, to sustain the charge of negligence on the part of the defendant, it must have had, by its employees in charge of the train, actual knowledge that the deceased was at the time, by reason of intoxication, in so helpless a condition as to be unable to protect himself from impending danger. While the evidence offered on behalf of the plaintiff was ample to show that her intestate was an intemperate drinker of intoxicating liquors, and had been drinking before he went on duty as a brakeman on the
The plaintiff offered to give in evidence the alleged admissions of the conductor and rear brakeman of the train, respectively, made to her after the accident, to the effect that they knew that the deceased was so drunk at the time the accident occurred that he was unable to take care of himself. This evidence was, on the objection of the defendant, excluded by the court. This ruling is assigned, as error. It is claimed that the evidence was competent, not for the purpose of showing negligence of the defendant, but for the sole purpose, for which it was offered, of showing that the defendant’s employees on the train had actual notice of the condition of Mr. Parker before he fell from the train. But such knowledge on the part of the employees was a fact which it was necessary for the plaintiff to prove in order to establish the defendant’s negligence, and their admissions made after the accident were incompetent to prove such fact. Such admissions are within the rule that the declarations or admissions of an agent, which are no part of the res gestse, and not made in the course or within the scope of his agency, are hearsay testimony, and therefore incompetent as evidence against his principal. Presley v. Lowry, 25 Minn, 144; Van Doren v. Bailey, 48 Minn. 305, 51 N. W. 375; Rodes v. St. Anthony & D. Ele. Co., 49 Minn. 370, 52 N. W. 27; Halverson v. Chicago, M. & St. P. R. Co., 57 Minn. 142, 58 N. W. 871; Reem v. St. Paul City Ry. Co., 77 Minn. 503, 80 N. W. 638, 778.
The trial court rightly excluded the offered evidence, and the order denying the motion for a new trial must be, and it is, affirmed.
LOVELY, J„ did not sit.