86 Iowa 340 | Iowa | 1892
“Defendant moves to exclude from the jury the-evidence in the two depositions of the declarations of' William Benedict, a member of the board of supervisors, tending to show knowledge on the part of the-county that the bridge was condemned, on the ground that the testimony should be introduced by the testimony of Mr. Benedict, and not by way of admission. An officer cannot make an admission after the fact, or-an admission where he has not power or authority to-act absolutely for the whole corporation, and it is not a part of the res gestee
“The plaintiff in this case must establish that the defendant-, by its board of supervisors, knew, or had reason to know, before the accident, that said bridge was unsafe; and the declaration of a member of the board, when not sitting as such member, admitting knowledge that the bridge was unsafe, is not competent evidence against the county, and does not bind it.”
The court refused to give this instruction, and thereby submitted the evidence to the jury for its consideration. It appears that the alleged declarations of Benedict were made after the accident, and it does not appear that when he made the declarations he was engaged in any official work or employment for the county. Under these circumstances, the testimony as to his declarations was not competent evidence. He was an agent of the county, and his declaration was in no way connected with, nor apart of, the res gestee. It was a mere narration of a past event. That it was not admissible as evidence, see Sweatland v. Ill. & Miss. Telegraph Co., 27 Iowa, 433; Treadway v. S. C. & St. P. Railway Co., 40 Iowa, 526; McPherrin v. Jennings, 66 Iowa, 622; Verry v. B., C. R. & M. Railway Co., 47 Iowa, 549; Luby v. Hudson River Railway Co., 17 N. Y. 131. It is to be remembered that the declarations in question were not made in the presence of any other member of the board, much less at a meeting of the board. We have looked into the case fully to see if it cannot be said that the admission of this evidence and its submission to the jury were without prejudice. Our conclusion is that we cannot so hold. So far as the outward appearance of the bridge was concerned, it appeared to be sound. The plaintiff so- thought when he drove his engine and threshing outfit upon it, for he
III. Several other questions are presented in argument, which we do not think demand separate consideration. But, in view of a new trial, we think care should be taken to allow no expert testimony to be introduced without an affirmative and explicit showing that the witness is qualified as an expert to give an opinion upon the subject inquired about; and while we do not hold that it was error to refuse the instructions to the jury requested by the defendant, yet we think the jury should have been plainly and explicitly instructed to inquire aiid determine whether the plaintiff was or was not negligent in driving upon the bridge in question with his whole threshing outfit coupled together, and thus placing a weight of about ten thous- and pounds on the bridge at one time, when, by uncoupling the different parts, and passing them over separately, the passage could have been made in safety.
For the error in refusing to give the instruction abóye set out, the judgment is reversed.