The two witnesses for the plaintiff, who were going north and who passed the deceased ten or fifteen rods north of the crossing, when they had reached a point in the highway, twenty to twentyfive rods north of the crossing, observed the train approaching from the west. The train was then nearly half a mile distant. They looked back and observed the deceased. He was then sitting on his load, facing partly east. There is some discrepancy in the evidence as to the distance of the deceased from the crossing at this time. But the shortest distance as estimated by them was fifteen feet. There were four railroad tracks at this place, and the train was on the south track. The deceased continued to drive on until he got upon the north track. Then observing, apparently for the first time, the approaching train, he partly raised up and commenced whipping his horses. The horses got over the south track, but the wagon was intercepted by the train, and the intestate was killed. If he had stopped on the north track he would have been safe. It does not appear that the horses were unmanageable, or that he might not have stopped them at this point until the train passed. But assuming that his misjudgment in attempting to cross in front of the train was not alone sufficient to charge him with negligence, on the ground that when he discovered the train he was called upon to decide instantly what he should do, this furnishes no answer to his prior negligence in not having stopped his horses before going upon the track, whereby he would have avoided the peril which he afterward encountered. It is true that he was ascending a grade on the highway to reach the crossing, the rise being about twelve feet in all. But the embankment was guarded by a railing on each side of the road, and even if the horses could not have held the load on this ascent, no serious damage could, so far as appears, have been apprehended, or would have resulted from stopping them. If he did not observe the train before reaching the track, it was by reason of his negligence; if he did observe it, his proceeding on without stopping was an act of gross carelessness. We can see no ground upon which the verdict can stand. The judgment should be reversed and a new trial granted. All concur.

Judgment reversed.

See notes, 6 Am. and Eng. R. R. Cas. 123, 101.

HUDSON

v.

CHICAGO AND N. R. Co.

(Advance Case, Iowa. October 20, 1882.)

Although the question as to the sufficiency of evidence to support a verdict may, in a certain sense, become a question of law, yet it could not be intended by the statute (Code § 3173) that the appellate court should be required to take up the case on the facts, examine and weigh the evidence, and determine whether the jury was justified from the evidence in finding the verdict.

In an action for damages for injury to a horse, by reason of the negligent construction of a railroad track, evidence of former accidents at the same place, to parties other than the plaintiff, is not competent.

In such an action, evidence that the road had been repaired subsequently to the accident is not admissible, on the principle that the admissions of an agent or employee after the transaction cannot be introduced as evidence against his principal.

APPEAL from Marshall circuit court.

The plaintiff claims damages in the sum of $100 for an injury to a horse, alleged to have been caused by a defective crossing over defendant's road; the defect consisting in placing the plank on the inside of one of the iron rails of the road so far from the rail that in driving the horse over the crossing he stepped into the aperture thus made, and was injured and crippled. There was a trial by jury, and a verdict and judgment for the plaintiffs. Defendant appeals.

Hubbard, Clark & Dawley, for appellant.
Sutton & Childs, for appellee.

ROTHROCK, J.-1. The amount in controversy, as shown by the pleadings, does not exceed $100, and certain questions are certified to this court for an opinion. The first question is as follows: "Did the court err in refusing to set aside the verdict as being contrary to the evidence?" Objection is made to this question upon the ground that it involves no such matter of law as to authorize its certification. On the other hand, it is claimed that, when a verdict is so contrary to the evidence as in this case, it is the duty of the trial court as a matter of law to set it aside, and the matter then becomes a question of law proper to be certified to this court. The object and purpose of the statute (Code, § 3173) was to prohibit appeals in unimportant cases. Such of these cases as involve questions of law upon which it is desirable to have the opinion of the supreme court, are saved from the operation of the statute. The object is that where new and important questions arise in

cases of this character appeals shall be allowed for the purpose of settling the questions involved, and making the decisions thereon anthority in cases afterwards arising in the courts. Now, although the question as to the sufficiency of the evidence to support a verdict may in a certain sense be said to become a question of law, yet it could not have been intended that this court should be required to take up the case on its facts, examine and weigh the evi-dence, and determine whether the jury were justified from the evidence in finding the verdict. A determination of such a question would be desirable to no one but the parties to the suit, and would be no authority in the future trial of cases.

2. Plaintiff introduced a witness who testified that some six months before the accident complained of a horse driven by him over the crossing in question got his foot between the plank and the rail at the same place where plaintiff's horse was injured. The defendant objected to this testimony as incompetent. The objection was overruled and an exception taken. Upon this point in the case the circuit court certified the following question: "Ought the court to have admitted evidence of former accidents at the same place to parties other than the plaintiff ?"

In Collins v. Inhab. of Dorchester, 6 Cush, 396, the plaintiff was injured by driving against a post in a highway. He sought to prove that another person had met with precisely the same kind of an accident before, at the same place and from the same cause. In determining the question the court said: "The testimony of Sprague that he, before the injury complained of by the plaintiff, received a similar injury at or near the same place, without any negligence on his part, was not competent for the purpose of proving that the road was defective at the time and in the place of the plaintiff's injury. It was testimony concerning collateral facts which furnish no legal presumption as to the principal facts in dispute, and which defendants were not bound to be prepared to meet. 2 Stark, Ev. 381; 1 Greenl. Ev. § 52."

Parker v. Portland Publishing Co. 69 Me. 173, was an action to recover damages for negligence in not properly lighting a passageway. Evidence was received tending to show at different times the condition of the hall-way and entrance to the rooms of the building as to light,-whether more or less, or none,—and of what had happened to other men at other times, and of their fortunate escape from peril. The court, Appleton, J., said, "These facts were all collateral to the main issue, and should have been excluded;" citing 1 Greenl. Ev. § 52. It was further said: "If evidence of this character is receivable, contradictory proofs would be admissable, and there would be as many collateral issues as there were collateral facts and witnesses testifying to them." It was held that allowing such evidence to be introduced was against the entire weight of judicial authority; citing Hubbard v. Railroad,

8 A. & E. R. Cas.-30

39 Me. 506; Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 Gray, 342; and other cases.

In Blaim v. Pelham, 118 Mass. 420, an action for a personal injury caused by a defect in a highway, it was held that what happened at the same place a year before was rightly rejected.

A different rule was announced in the case of Kelly v. South Minn. R. Co., 6 Am. and Eng. R. R. Cas. 264. But it appears in that case that the testimony objected to showed that the accident to which it related "was produced by a different cause, and at a point in the crossing about the condition of which there was no complaint;" and the court held that the defendant, if it deemed the evidence prejudicial, should have moved to have it stricken out. The rule, as stated in the opinion in that case, is not discussed, and no authority is given in its support. We think, both upon principle and authority, the evidence in question was improperly admitted, and that the question certified must be answered in the negative.

3. Testimony was received, over defendant's objection, to the effect that a day or two after the accident of which plaintiff complains, the employees of the defendant were at work at the crossing, "lifting the planks and making them different," and a witness stated that the plank where the accident happened "looked to be closer" to the rail after the repairs were made. The court certified this question upon that subject: "Did the court err in admitting testimony to show that the crossing had been changed and repaired after the accident?" We are clearly of the opinion that this question should be answered in the affirmative. The evidence could have been introduced and used before the jury for no other purpose than as an admission upon the part of the defendant that it had been negligent in keeping the crossing in proper repair prior to and up to the time of the accident. The admission of this evidence is in direct conflict with the case of Cramer v. City of Burlington, 45 Iowa, 627. It is in principle contrary to the wellestablished doctrine that an admission made by an employee or agent after the transaction, cannot be introduced as evidence against his principal. See Swetland v. Ill. and Miss. Telegraph Co. 27 Iowa, 434. To render such admission competent, it must be shown that it was both within the scope of the agency or employment, and made during the continuance of it in respect to the transaction then pending; or, in case of a corporation or company, the admission must be made by one having authority to bind the company. Appellee cites several adjudged cases which hold that evidence of such repairs may be shown. Whatever the rule may be in other jurisdictions, we regard it as settled in this state, and see no reason to make it otherwise, believing that it is correct in principle.

There are other questions certified which we need not set out

or discuss. They are in substance embraced in those above determined. The judgment of the circuit court will be reversed, and the cause remanded for a new trial. Reversed.

POWELL

v.

MISSOURI PACIFIC RY. Co.

(Advance Case, Missouri. November 20, 1882.)

In an action for negligently causing death by a railroad train, held, that aside from statutory or municipal regulation, no rate of speed is negligent per se.

Where the evidence introduced by the plaintiff shows that although the defendant was running its trains at a negligent rate of speed, still there was no connection between the rate of speed and the accident, but that the injury was caused by the forgetful and neglectful state of the deceased at the time, it is the duty of the trial court to direct a verdict for the defendant.

APPEAL from Johnson Circuit Court.

Thomas J. Portis, for appellant.

John F. Phillips, for respondent.

SHERWOOD, C. J.-The plaintiffs bring this action under the damage act, because of the death of their son, who was fatally injured by the defendant's cars. We rest our decision upon the evidence introduced by plaintiffs themselves in this cause, waiving all other questions whatsoever, as being altogether immaterial. That evidence, in substance and in brief, discloses that the son was a lad between fifteen and sixteen years of age, accustomed to go about the cars, to transact business there with the consent of his father, with whom he had been a great deal on the cars, shipping stock, and who had often warned him for three or four years before the occurrence of the accident, of the dangers attendant on proximity to the cars, but who nevertheless permitted him to go about the town of Holden, and the streets and depot, anywhere, regarding him as competent to take care of himself; that the son, in consequence of the facts aforesaid, was acquainted with the arrival and departure of the trains; that on the fatal evening he went down to the train to get newspapers from the express car of Metzler & Smith, in whose employ he then was, by his father's permission; that a train of cars coming from the west, such as that by which the son was killed, could be seen approaching for a mile or more when the track was clear, and that the track had to be clear in order for the train from the west to come in on the main track, its