it is equally clear that the law is in operation throughout every part of the state. uniformly as to all classes therein named. Is this sufficient? Soon after the adoption of the constitution it was said by this court that the scope and purpose of this section was to prevent laws of a general nature from being in force in some counties and not in others, and these early cases have been followed ever since."

Again:

"Of late years an effort has frequently been made to claim for this section of the constitution a wider scope than to guard against the evils resulting from legislation of the character mentioned by Thurman, J., in Cass v. Dillon, 2 Ohio St. 607, Scott, J., in Lehman v. McBride, Boynton, J., in McGill v. State, and Okey, J., in Ex parte Falk; but such efforts have uniformly failed. The only statutes which have been declared in conflict with this section of the constitution are statutes making different classes of different parts of the territory of the state, such as cities, villages, etc. This section of the constitution requires that laws of a general nature shall have not only an operation, but a uniform operation, throughout the state; that is, the whole state, and not only in one or more counties. The operation must be uniform upon the subject-matter of the statute. It cannot operate upon the named subject-matter in one part of the state differently from what it operates upon it in other parts of the state; that is, the law must operate uniformly on the named subject-matter in every part of the state, and when it does that it complies with this section of the constitution. That this is the scope and purpose of this section appears from its language, the debates of the constitutional convention, and the uniform construction placed thereon by this court in the cases above cited, and others hereinafter referred to. * * In Adler v. Whitbeck, 44 Ohio St. 539, 9 N. E. 672, an effort was made to have the statute there under consideration declared unconstitutional because its classification included saloons and excluded distilleries and breweries, but the effort failed. A similar effort was made in Senior v. Ratterman, 44 Ohio St. 661, 11 N. E. 321, because wholesale dealers and manufacturers were not included within the same class, and the effort again failed. A similar effort was made in State v. Turnpike Co., 37 Ohio St. 481, as to the classification of turnpikes, and the effort again failed. * * The scope and force of this section of our constitution being as herein indicated, it is clear that the statute in question is not in conflict therewith. The statute is in operation in every part of the state, and operates uniformly upon the classes of persons therein designated in every part of the state. The act is clearly authorized as a police regulation to protect the health and promote the comfort of those engaged in operating electric cars."

*

The question under consideration is somewhat like that presented in Harwood v. Wentworth, 162 U. S. 547, 563, 16 Sup. Ct. 890. There the question was whether an act of the legislature of Arizona fixing the compensation of county officers, and for that purpose classifying the counties of the state according to the assessed valuation of property in each county, was a local or special act. If so, it was void, as repugnant to an act of congress declaring that the legislatures of the territories shall not pass local or special laws in certain cases. The practical effect of the act was to establish higher salaries in some counties for the particular officers named than for the same class of officers in other counties. "But," the supreme court said, "that does not make it a local or special law. The act is general in its operation; it applies to all counties in the territory; it prescribes a rule for the stated compensation of certain public officers; no officer of the classes named is exempted from its operation; and there is such a relation between the salaries fixed for each class of counties, and the equalized assessed valuation of property in them, respectively, as to

show that the act is not local and special in any just sense, but is general in its application to the whole territory, and designed to establish a system for compensating county officers that is not intrinsically unjust, nor capable of being applied for purposes merely local or special.”

We do not deem it necessary to pursue this subject further. We think it clear that the Ohio statute is not obnoxious to the constitutional provision requiring all laws of a general nature to have a uniform operation throughout the state. As it applies to all railroad corporations operating railroads within the state, it is, within the meaning of the state constitution, general in its nature; and, as it applies to all of a given class of railroad employés, it operates uniformly throughout the state.

It is next contended by the plaintiff in error that if Van Dusen was injured by the negligence of Bartley, the conductor, he is not entitled to recover, for the reason that the latter was not negligent in the performance of any duty imposed by law on the master personally, but only in respect of the performance of work pertaining to him and other employés in the same work. The principal authorities cited in support of this view are Railroad Co. v. Keegan, 160 U. S. 259, 16 Sup. Ct. 269, and Stockmeyer v. Reed, 55 Fed. 259.

If this contention were sustained, the statute of Ohio would be deprived of all practical value, and the manifest object of the legislature in passing it would be defeated. The Keegan and Stockmeyer Cases enforced the general rule that a foreman or superintendent of a body of employés doing a particular service was a fellow servant of those under him, and, consequently, the common employer was not liable to one of them for the negligence of the other. The very object of the statute before us was to prevent the application of that rule in Ohio as between a railroad company and its employés. Hence it declared that every person in the employ of a railroad company, "having power or authority to direct or control any other employé of such company, is not the fellow servant, but the superior, of such other employé." If, by force of the statute, Bartley was not a fellow servant, but the superior, of Van Dusen, he did not become, within the meaning of the statute, a fellow servant simply because he did some work of the kind done by Van Dusen. The object of the statute was to make one to whom is committed by a railway company the authority to direct and control employés in the same service the representative, in respect of that service, of the common employer, so that his acts, within the scope of his employment, are the acts of the company, and his negligence its negligence.

That the evidence was such as to require the submission of the question of negligence to the jury is, in our judgment, too manifest to require discussion. Indeed, so far from there being no proof to support the allegation of negligence, the preponderance of evidence on that issue was with the plaintiff.

It is said that the damages found were excessive, and that the judgment below should, for that reason, be reversed. That was

a question for the consideration of the trial court on a motion for a new trial. Upon a writ of error this court can deal only with questions of law. If there was a case of disputed facts upon which the plaintiff was entitled to go to the jury,-as undoubtedly there was, it was for the jury to assess the damages; and, if the trial court did not disturb the verdict upon the ground that the damages were excessive, that was the end of the question of damages. As that court laid down no rule for the assessment of damages that was erroneous in law, this court is without power to revise the judgment in respect of the amount of damages. It is restricted in its consideration of the case to questions of law. Railroad Co. v. Fraloff, 100 U. S. 24, 31.

It is alleged that error was committed in permitting plaintiff, against the objection of the defendant, to prove what Bartley, the conductor, said just after the plaintiff was injured. The conductor and those under him were very near each other during the performance of the work committed to them. Van Dusen testified that his hand was caught and held fast while the car that mashed it backed up five or ten feet. Getting his hand out as soon as the car backed, he came from between the cars, and walked towards the engine, holding his hand up. The engineer got off the engine, and, with Bartley, came towards Van Dusen. Being asked how long after the accident before Bartley met him, Van Dusen said: "It was not a minute,-that is, a minute after I got my hand out and walked towards the engine;" and that it may have been "six or seven car lengths" before he met Bartley. Being asked what Bartley said to him at that time, the question was objected to, but the court permitted him to answer, upon the ground that it came "within the rule of the res gestæ," and that "what was said by this plaintiff and what was said by the engineer or by the conductor in the very doing of this thing is a part of the thing itself." The plaintiff answered: "Well, I asked Mr. Bartley what in the world he was trying to do, coming back on me the second time without saying anything about making a second cut. He said: 'Ed, I am sorry. I was going to put this car on the elevator track. When I backed up, I did not see you. I did not know just where you was until I heard you holler.'"

We are of opinion that this evidence was properly admitted. Its exclusion was not required by the rule that "an act done by an agent cannot be varied, qualified, or explained, either by his dec larations which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held or an isolated act done at a later period." Packet Co. v. Clough, 20 Wall. 528, 540. The case is rather covered by the rule formulated by Greenleaf (1 Greenl. Ev. § 113), and sanctioned by the supreme court in Railroad Co. v. O'Brien, 119 U. S. 99, 105, 7 Sup. Ct. 118, namely:

"The party's own admission, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency in regard to a transaction then depending, et dum fervet opus. It is because it is a verbal act, and part of the res gestæ, that it is admissible at all, and therefore it is not necessary to call the

agent to prove it; but wherever what he did is admissible in evidence, there it is competent to prove what he said about the act while he was doing it."

Judge Hammond, in an opinion overruling the motion for a new trial, properly indicated the situation, when he said that the conductor "almost immediately, and while the cars were moving, or had just stopped, and while the plaintiff was bleeding from the injury at that moment received, described his own part in bring ing about the motion that effected the injury." The rule insisted upon for the exclusion of such declarations would, he said, "exclude everything from the res gestæ which did not occur on the very instant of the grinding of the flesh and bones by the colliding car." In O'Brien's Case the question was as to the admissi bility of certain declarations of a railroad engineer as to the rate of speed at which his train was moving at the time of the accident. The court said:

"Although the speed of the train was, in some degree, subject to his control, still his authority, in that respect, did not carry with it authority to make declarations or admissions at a subsequent time as to the manner in which, on any particular trip, or at any designated point in his route, he had performed his duty. His declarations, after the accident had become a completed fact, and when he was not performing the duties of engineer, that the train, at the moment the plaintiff was injured, was being run at the rate of eighteen miles an hour, was not explanatory of anything in which he was then engaged. It did not accompany the act from which the injuries in question arose. It was, in its essence, the mere narration of a past occurrence, not a part of the res gestæ; simply an assertion or representation, in the course of conversation, as to a matter not then pending, and in respect of which his authority as engineer had been fully exerted."

1

We recognize the difficulty of laying down a rule upon this subject that would apply in every case. But we do not doubt that, both upon principle and authority, the declarations of Bartley, tending to show that the injury to Van Dusen was to be attributed to his (Bartley's) negligence, were admissible in evidence as part of the res gestæ. These declarations cannot properly be characterized as hearsay, for they really accompanied the transaction out of which arose the injury. The principal matter was the doing of certain work under the supervision of one having authority to control those engaged in it. The statements of the conductor were made while the work was in progress, while the plaintiff was assisting him, and in presence of the fact necessary to be explained. They illustrated what had, up to the moment of such statements, been done by him in the prosecution of the work. What the conductor and Van Dusen set out together to do was not completed,

1 Railroad Co. v. Ashley, 14 C. C. A. 368, 67 Fed. 209; Insurance Co. v. Cheever, 36 Ohio St. 201, 207; Keyser v. Railway Co., 66 Mich. 390, 33 N. W. 867; Rockwell v. Taylor, 41 Conn. 55, 59; Waldele v. Railroad Co., 95 N. Y. 274; Railroad Co. v. Coyle, 55 Pa. St. 402; Lund v. Inhabitants of Tyngsborough, 9 Cush. 36; Carrying Co. v. Gnuse, 137 Ill. 264, 27 N. E. 190; Hermes v. Railway Co., 80 Wis. 590, 50 N. W. 584; Hooker v. Railway Co., 76 Wis. 542, 44 N. W. 1085; Hill v. Com., 2 Grat. 594, 605; Elledge v. Railway Co., 100 Cal. 282, 34 Pac. 720; State v. Molisse, 38 La. Ann. 381; McLeod v. Ginther's Adm'r, 80 Ky. 399; Railroad Co. v. Foley (Ky.) 21 S. W. 866; Shafer v. Lacock, 168 Pa. St. 497, 32 Atl. 44; Baltimore & O. R. Co. v. State (Md.) 32 Atl. 201; Railway Co. v. Buck, 116 Ind. 566, 19 N. E. 453; Brownell v. Railroad Co., 47 Mo. 239.

and what the former said was almost simultaneous with the doing of the thing causing the injury. The infliction of the injury and his explanation of his conduct were so close together that they may be said to have occurred at the same time. His declarations, therefore, were not, in any proper sense, a mere narrative of past occurrences, but were part of the occasion out of which the plaintiff's cause of action arose. They served to disclose the nature and quality of the acts in question, and were made under circumstances precluding the possibility of premeditation, design, or deliberation on the part of the conductor. They were made on the spot where the injury occurred. To exclude them would be to make their admissibility in evidence depend wholly upon the matter of time, although the circumstances show such direct and immediate connection between the thing done and the declarations of the person having such thing in charge as to justify the court in characterizing the transaction as one continuous, uncompleted transaction, and such declarations to be part of it.

Having considered all the matters presented by the record which, in our judgment require consideration, and perceiving no error of law in the record, the judgment iş affirmed.

MORTGAGES

(78 Fed. 708.)

EMIL KIEWERT CO. et al. v. JUNEAU et al.

(Circuit Court of Appeals, Sixth Circuit. February 2, 1897.)

No. 420.

MORTGAGEE IN POSSESSION--ACCOUNTING FOR RENTS-ESTOPPEL. One J. made a deed of property owned by him to the president of the K. Co., as security for his indebtedness to the K. Co., existing and to be incurred; it being agreed between the parties that the rents of the premises, after paying expenses, should be applied on J.'s indebtedness. The K. Co.'s office and the residence of its president were at a great distance from the town where the property was situated, and they employed an agent on the spot to attend to the renting. J. occupied a part of the premises, took the principal charge of them, and assisted the agent in obtaining tenants. The accounts of rents collected, rendered from time to time by the agent of the K. Co., were submitted to and indorsed by J.; and no complaint was ever made by him of a want of diligence in renting, or that more rent might be obtained. Held that, on an accounting by the president of the K. Co. as mortgagee in possession, J. was estopped to claim that the mortgagee should be charged with more than the amount of rents actually collected.

Cross Appeals from the Circuit Court of the United States for the Western District of Michigan.

Bill to foreclose a mortgage, in form a deed, executed for the purpose of securing an indebtedness then due, and further indebtedness then contemplated. The mortgagor in August, 1888, was indebted in the sum of $1,590 to the complainant the Emil Kiewert Company, a corporation of the state of Wisconsin. To secure this he made an absolute deed of conveyance to Emil Kiewert, president of said corporation. It is conceded that this conveyance was intended to secure the debt then existing, and such further indebtedness as should from time to time be created, to the Emil Kiewert Company. It was understood that the said company, or Emil Kiewert as trustee, should take possession of the prem