than that of the existence or extent of the agency), it is necessary, in order that the admission or declaration of the agent may be binding on his principal, that the following elements should concur: (1) the fact of the agency must be established; (2) the admission or declaration must be in regard to some matter within the scope of the agent's authority; (3) the admission or declaration must (a) constitute a part of the res gestae of a transaction in which the agent was acting for his principal, and (b) serve to characterize that transaction. (See also Mecham, Agency, sec. 714; Clark & Skyles, Law of Agency, secs. 466-471; Greenleaf, Evidence, secs. 113 and 114; 2 Jones Evidence, secs. 359 and 360; Am. and Eng. Ency. of Law, 1, 690-698; Wigmore, sec. 1078; Ency. of Evidence, 1, 538-556.) The facts in this case clearly bring the "service letter" within the rule making the authorized admission of an agent competent evidence against his principal (1) The "fact of agency" was admitted; (2) the admission was as to a "matter within the scope of the agent's authority;" (3) the admission "constituted a part of the res gestae of a transaction in which the agent was acting for his principal, and serve to characterize that transaction."

We shall divide the questions concerning the admission of the "service letter" under the following heads: (1) Is the fact that the statements were hearsay as far as Superintendent Van Housen was concerned a valid objection? (2) Is the fact that these statements did not constitute a part of the res gestae of the collision between the first and second sections of train 81 a valid objection? (3) Is the fact that these statements were not made at the time Mr. Smith, the trainmaster, told Guernsey that he was discharged, a valid objection? (4) Are the statements made by Van Housen incompetent on the ground that while he had a right to discharge Guernsey and state in the service certificate that he was discharged, still he did not have a right to go further and state the facts constituting the specific reasons for Guernsey's discharge? (5) Is it a valid objection to the statements contained in the service letter that

they constitute the "opinion, conclusion, conjecture or de duction" of Superintendent Van Housen?

(1) That this admission is not objectionable because the facts contained therein are hearsay as far as Van Housen is concerned, see Wigmore, sec. 1053; Kitchen v. Robins, 29 Ga. 713, 716; Bishop of Meath v. Marquess of Win chester, 3 Bing. N. C. N. 183, 203; Bulley v. Bulley, L. R., 9 Ch. App. 739, 747, 751; Wasey v. Insurance Co., 126 Mich. 119, 85 N. W. 459; Sparr v. Wellman, 11 Mo. 230, 234; Reed v. McCord, 160 N. Y. 330, 54 N. E. 737; Thayer's Cases, Ev., p. 112; Miller v. Denman, 8 Yearg. 237; Shaddock v. Clifton, 22 Wis. 114 (2 & 3). We have already discussed the res gestae of this transaction and trust have established that it is entirely separate from the res gestae of the collision. The fact that Mr. Smith, the trainmaster, told Mr. Guernsey on the night of February 5th that he was discharged, may lead to the conclusion that the service letter was no part of the res gestae of the discharge. However that may be, we think the matter wholly immaterial as to whether the giving of the service letter is regarded as a part of the discharge or not, it is admitted that in itself it was an authorized act, and therefore has a res gestae of its own. Res gestae as heretofore set forth simply means accompanying an authorized act, and counsel admits that the service letter was authorized. This we think is conclusive on the question of the res gestae. (4) Counsel argues that Superintendent Van Housen had a right to go so far in the service certificate, but had no right to go as far as he actually went. A sufficient answer, we submit, to this contention is that there was a strong showing of authority for the issuing of the service letter, and in the absence of any contradiction of that showing appellant is bound by the record made on the trial. It was admitted on the trial that Van Housen was the superintendent of the defendant for the division covered by the accident; it was shown that it was the custom, and the strong inference is that it was the contract right of the discharged employee Guernsey to receive a "service letter" upon leav

ing the defendant.

(5) Counsel objects to the statements in the service letter on the ground that they constitute the opinion, the conclusion or conjecture of the superintendent. We submit that this phase of the question is satisfactorily disposed of by the authorities we have cited under the "hearsay" objection to the service letter. It was there shown that the fact that the admissions were based upon hearsay is no objection.

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. The 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, Nevada. The first section left at about 9:55 p. m. of the 4th day of February. The second section left about thirty or forty minutes later. were received from the dispatcher by either crew. The collision occurred about one and one-quarter 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 three thousand feet. Freight train No. 81 was scheduled on the time card to leave Beryl at 4:30 a. m. The last

No further orders

stopping place was at Lund, about twenty miles east of Beryl. The second section at Lund overtook the first section. The first section left Lund at 3:55 a. m., about twenty minutes late. The second section left about seventeen or twenty minutes thereafter. The speed of the first section running from Lund to Beryl was from fifteen to twenty miles an hour until within about two and one-half miles of the place of the accident, when it slowed down to about five or seven 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 ten 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 twentyseven to twenty-eight miles an hour. When it struck the rear of the first section, it was running thirty miles an hour as testified to by the conductor of the second section, or about twenty 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."

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 eight or ten 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 limits 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 thirty 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."