Gulf, Colorado & Santa Fe Ralway Co. v. Moore , 69 Tex. 157 ( 1887 )

Collard, Judge.

The fifth paragraph of the court’s charge is incorrect, and the error assigned is palpable. Since the case of Hays v. The Houston & Great Northern Railroad Company (46 Texas, 272), there has never been a dotibt of the law. A corporation is no more liable for the malicious acts of its employe or servant tiha.n an individual would be. The unauthorized malicious acts • of the agent of a person or corporation will not render the principal liable for exemplary damages, unless the same are ratified by the principal, with full knowledge of the facts. (Galveston, Harrisburg & San Antonio Railway Company v. Donahoe, 56 Texas, 163; Jacobs, Bernheim & Co. v. Crum, 66 Texas, 401; Heidenheimer v. Sides, 67 Texas, 34, 35.

¡Negligence is generally a fact to be found by the jury. When a duty is required by law, the omission of which causes damages for which an action is maintainable, the omission is negligence; but as to whether there is negligence in a particular case, causing injury, should generally be left to the jury. Contributory negligence is no exception to the rule. ' It would have been improper for the court to have instructed the jury, if they found the facts assumed in the special charge asked by the defendant, that it would be exonerated from liability. Whether the existence of such facts constituted negligence on the part of plaintiff and whether they contributed to the injury complained of, were not questions for the court to decide; they were questions that should have been left to the jury, as well as the existence of the facts themselves: (Houston & Texas Central Railway v. Wilson, 60 Texas, 143; Texas & Pacific Railway Company v. Levi, 59 Texas, 675.) We therefore find there was no error in the refusal of the court to give the charge asked.

. There was no error in sustaining the objections made to questions propounded to Matt Dillon, as shown by bills of exceptions. He was asked to state what another man said (who was with plaintiff at the time of the accident) after the accident (the court says ten minutes after) going to show that plaintiff heard the whistle and the ringing of the bell; or, as stated in a different form in another bill of exception, “if one Reedy, who was with plaintiff, did not say after the collision, in plaintiff’s presence, that he and plaintiff heard the bell and the whistle, but thought they could make the crossing before the train passed it;” the declaration ten minutes .after the accident, according to the qualification made by the judge.

The presence of the plaintiff could not affect the admissibility of the evidence; he was unconscious, could not hear the remark, and of course could not deny it. The declaration was not a part of the res gestae it was a mere narration of a past event, and was in no other way connected with it. Reedy could have testified to the fact if it was true; or if he had been called as a witness and denied saying it, he could have been impeached by the proposed declaration. We are unable to see how it could have been admitted as original evidence. The declarations of strangers are sometimes admissible, but they should be shown to be a part of the thing done, contemporaneous with it, or so connected with it as to give it character; they should amount to verbal acts, that could be attributed to the party whose acts or conduct they explain. (1 Greenleaf on Evidence, 108 and following to 111; 1 Wharton’s Law of Evidence, 258, 259 and 260. 261, 262; Abbott’s Trial Evidence, pages 588, 589.) It is unnecessary to notice other errors assigned. For the error found in the charge of the court upon exemplary damages, the judgment should be reversed and the cause remanded.

Reversed and remanded.

Opinion adopted October 18, 1887.