MEYERS V. SAN PEDRO, L. A. & S. L. R. Co. (Supreme Court of Utah, Aug. 23, 1909.) Master and Servant-Injury to Servant-Negligence-Evidence.— Where, in an action for the death of the conductor in charge of the first section of a train in a rear-end collision with the second section, the evidence showed that the collision occurred a little over a mile before reaching a switch at a station which consisted of only a switch track and a water tank; that the first section at the time of the accident was running at about seven miles an hour because of a defect in the locomotive; that the second section, which had overtaken the first section at a station about 20 miles from the place of the accident, was running from 20 to 30 miles an hour-a rule of the railroad that trains will approach yard limits under full control and be prepared to stop within the limits of vision, etc., was admissible as bearing on the care of the respective crews, especially that of the crew of the second section in approaching the station. Evidence-Best Evidence. In an action for the death of the conductor in charge of the first section of a train by the second section running into it, the testimony of the conductor of the second section as to when his train was due at a station a little over a mile beyond the place of the accident was admissible as against the objection that the time-table was the best evidence, for the fact to be proved as to when the second section was due at the station was an independent fact. Evidence Declarations of Agents-Proof of Agency.-Proof of custom of a railroad to give a service letter to discharged employees, that the superintendent of a division gave a service letter to a conductor discharged after a collision between his train and another train on that division, that the report of an investigation by the trainmaster as to the cause of the collision had been transmitted to the superintendent, without proof as to whose duty it was to give such a letter, and without showing the scope of the authority of the person whose duty it was to write it, did not establish the agency of the superintendent so as to render the letter admissible as having been written within the scope of his authority. Evidence-Admissions Admissibility. The admissions of a party are admissible, regardless whether the transaction as to which they are made is itself material to the issue and admissible in evidence. Evidence-Admissions-Declarations of of Agents-Admissibility. In the absence of some direct or specific authority of an agent to make an admission to bind the principal by a particular admission of the agent within an alleged apparent scope of authority, the transaction in which the agent was acting for the principal and in respect to which the admission was made, and to which it related, must itself be material and admissible. Meyers v. San Pedro, etc., R. Co Evidence-Declarations-Res Gestæ.-The admission of a declaration as a part of the res gestæ rests on the principle that the declaration is interwoven with the transaction of which it is a part, and is the spontaneous expression of thoughts created by and springing out of the transaction, and the declaration in such a case is admissible for or against either party, regardless of the relation of agency. Evidence Declarations-Res Gestæ.*-A statement by a division railroad superintendent to a discharged conductor, made nine days after the discharge by the trainmaster who discharged the conductor on the day his train collided with another train, as to the cause of the collision, and contained in a service letter given by him to the conductor, is merely a part of the res gestæ of the giving by the superintendent to the conductor of a service letter pursuant to the custom of the railroad, and is inadmissible to bind the railroad in an action for death caused by the collision, in the absence of evidence of the authority of the superintendent to make the statement. Appeal and Error-Harmless Error-Evidence — Admissibility. — Where, in an action for the death of a railroad conductor in charge of the first section of a train caused by the second section running into it, the evidence was conflicting on material issues, the error in admitting a statement by a division superintendent to the conductor in charge of the second division to the effect that the conductor had been discharged for running down a train which was on time, and that he was dismissed from the service because of his utter disregard of the timetable rules and instructions, was prejudicial. Master and Servant "Fellow Servants"-Who Are.*-Where two sections of a train are operated as two distinct and independent trains, the members of the crew of one section are not fellow servants of the members of the crew of the other section within the statute defining fellow servants as persons engaged in the service of a common employer, working together at the same place and time, and to a common purpose. Appeal from District Court, Third District; T. D. Lewis, Judge. Action by Lena Meyers against the San Pedro, Los Angeles & Salt Lake Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial. *For the authorities in this series on the question whether the members of one train crew are fellow servants of another train crew, see first foot-note of Still v. San Francisco & N. W. Ry. Co. (Cal.), 31 R. R. R. 680, 54 Am. & Eng. R. Cas., N. S., 680. For the authorities in this series on the different department limitation of the fellow servant rule, see fourth foot-note of Indianapolis T. & T. Co. v. Kinney (Ind.), 31 R. R. R. 264, 54 Am. & Eng. R. Cas., N. S., 264; last foot-note of Louisville & N. R. Co. v. Clark (Ky.), 29 R. R. R. 595, 52 Am. & Eng. R. Cas., N. S., 595; last foot-note of Louisville & N. R. Co. v. Brown (Ky.), 27 R. R. R. 426, 50 Am. & Eng. R. Cas., N. S., 426. Meyers v. San Pedro, etc., R. Co Pennel Cherrington, for appellant. Booth, Lee & Badger and Powers & Marioneaux, for respondent. STRAUP, C. J. The plaintiff brought this action to recover damages for the death of her husband, alleged to have been caused by the defendant's negligence. It is alleged in the complaint that the defendant negligently ran and operated "a certain train known as 'section No. 2,' of train No. 81 at a high and dangerous rate of speed into and against a certain train known as the 'first section' of train No. 81, and in disregard of the schedule which it had theretofore established for the running of trains," whereby the deceased, who was the conductor of the first section, was killed. The defendant denied the alleged negligence, and pleaded contributory negligence and negligence of fellow servants. Two sections were made up at Black Rock, Utah. W. C. Guernsey was the conductor of the second section. The crews of both sections received orders from the train dispatcher to leave Black Rock and run to Caliente, Nev. The first section left at about 9:55 p. m. of the 4th day of February. The second section left about 30 or 40 minutes later. No further orders were received from the dispatcher by either crew. The collision occurred about 14 miles east of the east switch at or near Beryl, Utah, on February 5th, at about 4:25 a. m., as testified to by some witnesses, or at 4:30 or between 4:28 and 4:29, as testified to by others. The station there consisted of only a switch track and a water tank. The distance between the east and west switch is 3,000 feet. Freight train No. 81 was scheduled on the time card to leave Beryl at 4:30 a. m. The last stopping place was at Lund, about 20 miles east of Beryl. The second section at Lund overtook the first section. The first section left Lund at 3:55 a. m., about 20 minutes late. The second section left about 17 or 20 minutes thereafter. The speed of the first section running from Lund to Beryl was from 15 to 20 miles an hour until within about 21⁄2 miles of the place of the accident, when it slowed down to about 5 or 7 miles an hour, at which speed it was running when the rear end was run into by the second section with such force as to demolish the caboose and three cars ahead of it, and to derail a number of other cars. The engine of the second section, and about 10 cars of that section, were also derailed, and a couple of them crushed. The second section, after it left Lund, made an average speed of from 27 to 28 miles an hour. When it struck the rear of the first section, it was running 30 miles an hour as testified to by the conductor of the second section, or about 20 miles an hour, as testified to by the engineer of that section. The deceased and two brakemen of the first section, who were in the caboose, were killed. The first section had not intended to stop at Beryl. The second section had intended to do so "to water an outfit." Meyers v. San Pedro, etc., R. Co It is further shown that at the time of the accident one of the injectors on the engine of the first section-an apparatus which automatically fed water from the tank into the boiler-gave the engineer some trouble, and had bothered him for the last 8 or 10 miles, and had given him more or less trouble during the trip. The engineer of that section testified that he was working on the injector at the time of the accident, and because it did not work properly the steam was shut off, which reduced the speed of the train. The morning was very dark and foggy. The first section displayed the usual tail lights on the rear of the caboose. The average speed of the train in the vicinity of the accident, as shown by the time card, would be 10.7 miles per hour, and over the entire division 13.5 miles. A number of rules of the defendant were put in evidence, some by the plaintiff, others by the defendant. Among them were the following: Rule 91: "Trains in the same direction must keep at least five minutes apart, except in closing up at stations or at meeting and passing points." Rule 92: “A train must not arrive at a station in advance of its schedule time. A train must not leave a station in advance of its leaving time." Rule 98a: "Stations having yard limit will be designated in special rule in time-table. All trains and engines will have the right to work within such yard limits regardless of all except first-class trains, but will give way as soon as possible upon their approach. All except first-class trains will approach yard limits under full control and be prepared to stop within the limits of vision. The responsibility for accident at such points will rest with the approaching train. At such stations as have no yard limit signs, the limits will be considered to be between extreme switches." Rule 9: "The speed of passenger trains will ordinarily be that prescribed in the schedule, but in case of delay, requiring a greater speed in order to enable trains to make meeting points or to secure connections, the speed may be so moderately increased above that prescribed in the schedule as in the judgment of the conductor and engineman in charge of the train may be safe and prudent, due consideration being always given to conditions of track and all the circumstances. Freight trains will not exceed a speed of 30 miles per hour, i. e., will consume not less than two minutes in running each and every mile." Rule 99: "When a train stops or is delayed under circumstances in which it may be overtaken by another train, the flagman must go back immediately with stop signals a sufficient distance to insure full protection. When required, he may return to his train, first placing two torpedoes on the rail when the conditions require it. The front of a train must be protected in the same way when necessary by the fireman." Some witnesses testified that when a first section of a train left a station 20 minutes late, and the second section left 17 or 20 minutes thereafter, it was the custom of railroad companies to require the conductor and crew of the first section to Meyers v. San Pedro, etc., R. Co protect the forward train, in the nighttime and when necessary, by throwing off fusees until it got back on schedule time. Most of the witnesses who so testified also testified that the throwing off of fusees was largely within the judgment and discretion of the conductor. Other witnesses testified that it was not the custcm, under such circumstances, to throw off fusees or otherwise protect the train in that manner, unless it was not making reasonable headway, or had stopped, or was about to be stopped. The engineer of the second section testified that at Lund he was flagged by a fusee, and that from the time he left Lund until the accident he "did not run on to any burning fusees, nor did my engine explode any torpedoes." He further testified that, "immediately before hitting the train, I knew that we were about a mile and a quarter, or maybe two miles, from Beryl. I was on the lookout. I saw the tail lights of first 81 about five car lengths ahead of me. I then set the air in emergency." The case was tried to the court and a jury. A verdict was rendered in favor of the plaintiff. The defendant appeals. The first assignment of error relates to the ruling of the court in admitting in evidence rule 98a. The objection made to its admissibility was that it was immaterial and irrelevent. We think the rule was relevant and material as bearing on the care and conduct of the respective crews, especially that of the second section in approaching Beryl. The conductor of the second section, a witness on behalf of the plaintiff, was asked: "When were you due at Beryl?" The question was objected to on the ground that "it is incompetent and not the best evidence; that the time-table in evidence is the best evidence." The objection was overruled, and the witness answered that "it depended on how late the first section is. The second section had to be five minutes behind the first section; and, if the first section was on time, the second section was due at 4:35 a. m." We think no error was committed in the ruling. The fact to be proved-when was the train due at Beryl-was not the contents of a writing, but an independent fact to which the writing (the printed time-table) was merely collateral, or of which it was merely an incident. Furthermore, neither the plaintiff nor the deceased was a party to the writing, nor did the plaintiff assert any right founded upon or growing out of it, nor had either. any connection with the instrument, in the sense that the writing was regarded or understood to be the sole repository of the fact. "The question was not what was the contents of this printed paper; but when should the cars have arrived at that point?" C., B. & Q. R. R. v. George, 19 Ill. 510, 71 Am. Dec. 239. The trainmaster of the defendant, a witness called in behalf of the plaintiff, was permitted to testify, over the defendant's objection, that the defendant made, and that the witness held, an investigation of the accident; that he had power to employ and |