Dietrich v. Baltimore & Hall's Springs Railway Co.

Alvey, J., delivered the opinion of the Court. There were two actions brought—one by the father, and the other by the son, the son being a minor,—against the defendant, for an injury received by the son, caused by what was alleged to be the negligence of the defendant, or its agent.- The two actions, by agreement, were consolidated, and were tried together; and at the trial, at the close of the testimony, the Court instructed the jury that the evidence was legally insufficient upon which to found a verdict for the plaintiffs, and a verdict was thereupon rendered for the defendant. ³⁵⁵ The defendant owned and operated a horse railway between the City of Baltimore and Hall’s Springs, in Baltimore County, and the plaintiff, Andrew Jackson Dietrich, a youth of about fifteen years of age, in February, 1819, in attempting to get on the car while in motion, had his foot mashed and quite seriously hurt; and it is for this injury that both the father and the son have brought actions, founded upon the alleged neglect of the defendant or its agent, as the cause of the injury. A man by the name of Bowers was the driver and conductor of the car at the time the accident occurred. In the course of the trial, a question arose upon the offer by the plaintiffs to prove certain declarations of Bowers, the driver, made to the brother of the party injured, about half an hour after the injury received, as to the cause of its occurrence; the proffered declarations being to the effect, that the plaintiff was hurt because the step was broken off the car, and that he, the driver, would not have told the plaintiff to get on if he had thought of the step being off.

Upon objection, the Court held these declarations to be inadmissible, and the plaintiffs excepted. We know of no principle upon which the Court could have held otherwise than it did. It does not appear that the driver had been examined as a witness for the defendant, and the declarations were not, therefore, offered to impeach his testimony. They were offered by the plaintiff as evidence in chief; but as such they were clearly inadmissible.

There was no necessary connection between the declarations offered and the act complained of; the declarations in no manner forming any part of the res gestos; and the power of the driver to make such declarations to affect his principal is not to be inferred from his simple employment to drive and conduct the car. The principle is undoubted, that whatever the agent does in the prosecution of the business entrusted to him, or within ³⁵⁶ the scope of his employment, though it be done negligently and improperly, is to be regarded as the act of the principal; and the rule is briefly, but clearly and correctly stated by Judge Story, (Sto. Ag., sec. 134,) that “where the acts of the agent will bind the principal, there his representations, declarations, and admissions, respecting the subject-matter will also bind him, if made at the same time, and constituting part of the res gestee.” But an act done by an agent cannot be varied, qualified, or explained, either by declarations or admissions made by him, which amounts to no more than a mere narrative of a part occurrence, or by an isolated conversation held, or an isolated act done, at a subsequent time. 1 Tayl. Ev., sec. 526.

Here the declarations of the driver offered did not accompany the act complained of, but were made subsequently, in an isolated conversation, and which amounted to no more than a mere narrative of a past occurrence. They were therefore clearly inadmissible; and the cases all so hold, including our own. Franklin Bank vs. Steam. Nav.

Co., 11 Gill & J., 28, 34; Fairlee vs. Hastings, 10 Ves., 123; Steam Packet Co. vs. Clough, 20 Wall., 528 ; Luby vs. Hudson R. R., 17 N. Y., 131 ; Robinson vs. Fitchburg R. Co., 7 Gray, 92 . If any fact, material to the interest of either party, rests in the knowledge of an agent, it is to be proved by his testimony, and not by his mere assertion; and in this case, instead of offering the unsworn declarations of the driver of the car, he should have been called as a witness. The facts of the case, as shown in proof, were shortly these: The defendant’s car had a platform at each, end, and steps to get thereon only from one side, the other side being railed. The step to one of the platforms had been broken off the day before the accident; and on the occasion when the accident occurred, the platform with the broken step was the front platform, occupied by the driver.

The party injured intended going into town, and ³⁵⁷ instead of remaining on the side of the road in front of his father’s premises, where he lived, and there waiting, and from thence entering the car from the rear platform, which was open on that side, and by which he admits he could have readily and easily entered the car, he took a different position, and attempted to get on the car by the front platform, which had the