
    Treadway v. The S. C. & St. P. R. Co.
    1. Evidence: res gestíe: railroad. The declarations of an engineer, made some months after an accident by which the property of plaintiff was destroyed, are not competent evidence in an action to charge a railroad company with liability therefor.
    2.-: admission of attorney. The admissions of an attorney, to bind his client, must be destinct and formal, and made for the express purpose of dispensing with formal proof of a fact at the trial.
    3. Pleading: evidence. An admission in the nature of a confession and avoidance in one count of an answer, does not operate to admit matter formally denied in other counts.
    
      Appeal from Woodbivry District Court.
    
    Friday, June 11.
    AotioN to recover double tbe value of a cow owned by-plaintiff, alleged to have been killed by a train of cars operated by defendant at a point where the railroad upon which the train was running was not fenced, though the right existed to fence it at the place. The cause was submitted to the court without a jury, and a judgment was rendered for defendant. Plaintiff appeals.
    
      J. H. Swan and Joy do Wright, for appellant.
    
      Treadway do Clelland and S. M. Marsh, for appellee.
   Beck, J.

The cow of jdaintrff was killed upon a railroad owned by the Cedar Falls & Sioux City ¿Railroad Company. The Illinois Central Railroad Company leased the road, and the defendant runs its trains thereon under a lease, or contract, with that company. The first count of defendant’s answer denies all the allegations of the petition involving its liability; another count, confessing that the animal was killed by a train of cars run by defendant, alleges, in avoidance, that the road was fenced by the Ill. Cen. R. Co., which alone had the right to fence, and that the fence so constructed was kept in good repair, and that neither defendant nor the Ill. Cen. R. Co. was guilty of any negligence, wbicb produced tbe death of tbe cow.

Upon tbe trial, in order to establish that tbe cow was killed by defendant’s train, a witness was permitted to testify to certain declarations and admissions made by tbe" engineer of tbe train of defendant, wbicb, as was claimed, caused the injury. Tbe declarations were made a considerable time after tbe accident, but while tbe engineer was still in tbe employment of defendant. Tbe same witness testified to a conversation bad with defendant’s attorney, in wbicb be said, in effect, that defendant made no cpiestion as to its train killing tbe cow. All of this evidence was admitted,, against defendant’s objection. This ruling is now assigned for error. '

I. Tbe evidence was clearly incompetent. Tbe declarations of tbe engineer were not. of tbe res gestee, and it does not appear that tbe nature of the employment of tbe engineer created such a relation between him and defendant as rendered tbe declarations binding upon defendant. Story’s Agency, § 135, et seg.; 1 Greenleaf’s Ev., § 113, et seg.; Luby et ux. v. The Hudson River R. Co., 17 N. Y., 131.

II. The declaration of tbe attorney was manifestly incompetent. Admissions of an attorney, in order to bind bis client, must be distinct and formal, and made for tbe „ . ... „ . „ „ express purpose ot dispensing with formal proof of a fact at tbe trial. Those wbicb occur in mere conversations, though they relate to tbe matters in issue in tbe case, cannot be received in evidence against the client. 1 Greenleaf’s Ev., § 186.

III. It is urged that tbe fact wbicb the evidence tended to establish was admitted in tbe second count of defendant’s answei'; au(l was sufficiently proved by other evidence. The admission of the evidence is, therefore, though erroneous, without prejudice to defendant. But tbe admission in tbe pleading was in the nature of a confession and avoidance, wbicb does not operate to admit matters formerly denied in other counts of tbe answer. Grash v. Sater, 6 Iowa, 301; Shannon v. Pearson, 10 Iowa, 588; Quigley v. Merritt, 11 Iowa, 147.

We are unable to say that, independent of the incompetent evidence, the fact that defendant's train killed the cow was established by the proof, or should have been found by the District Court. The incompetent evidence was not so unimportant, in our judgment, that it had no influence upon the decision of the case. • We cannot, therefore, say that the error of its admission wrought defendant no prejudice.

Other questions presented in argument need not be considered, as, for the error above pointed out, the judgment of the District Court must be

REVERSED. ■  