#### WILLIAM S. ASHE *vs*ALEXANDER MURCHISON.

An agent, as such, is not necessarily incompetent to testify for his principal. He can only he excluded on the ground of interest.

Where a principal is sued for the negligence of an agent, a *prima facie*case of responsibility to his principal should be shewn, before the agent is excluded as a witness, and then the principal ought to be permitted to examine him on his *voire*dire, to explain his real situation.

Appeal from the Superior Court of Law of New Hanover County, at the Special Term in January, 1848, bis Honor Judge Manly presiding.

This was an action on the case against the defendant, Alexander Murchison, as the owner of a raft of timber, to recover damages for an injury done by said raft to a toll bridge, the property of the plaintiff, William S. Ashe. The declaration stated, that the plaintiff was the owner of a certain bridge over the North Eastern branch of the Cape Fear River, about a mile and a half above the town of Wilmington, and entitled to collect toll from passengers crossing the same : And that the defendant being the owner of a large raft of lumber, carelessly, improperly, and negligently permitted his said raft to strike against the said bridge belonging to the plaintiff, so as to break down and destroy a large part thereof, &c. Plea, Not guilty.

John Mills, a witness called by the plaintiff, testified, that on the - day of November, 1845, about a little before sunrise, he was at the bridge of the plaintiff, when he observed a very large raft of lumber, within twenty feet' of the bridge, and coming against it on the flood tide. No person was on the raft, and it struck the bridge and carried away sixty-eight feet of it. On one end of the raft there was a piece of grape vine, which *216looked as though it had been cut. He believed there was a small piece of rope at the other end of the raft, but as to this he was not positive. He further testified, that the bridge was the property of the plaintiff, he being then in possession of it, and collecting toll from passengers.

M. Lewis was- then called, as a witness for the plaintiff. He testified, that during the day, on the morning of which the raft had struck the plaintiff’s bridge, as testified to by the first witness, or during the next day, he was at the bridge, when one H. McKeller (who it was admitted was the agent of the defendant,) came to the bridge for the purpose of securing the raft and carrying it to Wilmington : That, while at the bridge and on the raff, he, McKeller, said, that the raft was the property of the defendant, who resided in the county of Cumberland. He further testified, that the raft was one of the largest he ever saw: and that the bridge was the property of the plaintiff who had been in possession of it, and receiving toll from passengers over it for many years. In answer to questions by the defendant’s counsel, he stated, that the stream, over which the bridge was built, was a navigable stream, and that the bridge-had been broken three or four times by rafts or flats.

The plaintiff then introduced one P. Tilley, who testified, that he was at the bridge with the plaintiff, while the raft spoken of was lying against it, and McKeller, defendant’s agent, was on the raft: That some conversation ensued between' the plaintiff and said McKeller, in which McKeller remarked, *“*he did not care a damn, if the raft had broken down the whole of the bridge.” This testimony was objected to by the defendant, but admitted by the Court.

Other witnesses were examined, who testified as to the extent of the damages done to the bridge.

The defendant then offered II. McKeller as a witness. The examination of the witness was objected to by the *217plaintiff, for the reason that the witness, being the admitted agent of the defendant, was responsible over to the defendant for the damages, which the plaintiff might recover in this suit, and that the witness was therefore interested in defeating the recovery of the plaintiff. The Court refused to permit the witness to be examined. The defendant’s attorney of record offered to release or discharge the witness from any liability, which he might be under to the defendant: but the Court was of opinion, that the attorney of record could not execute such a release for the defendant. The defendant then offered to examine the witness on his *voire dire,*to show the extent of his agency, and that he would not *be*liable over to the defendant. This was also refused by the Court.

The defendant insisted, and so asked the Court to charge the jury—

*First*— That if the plaintiff’s bridge was erected over a navigable stream, used by the public in conveying their produce to market, he must shew a right to such bridge by grant or otherwise.

*Secondly*— That if the plaintiff’s bridge, erected over a navigable stream, had been built in a weak and insecure manner, so as to be liable to be broke down by ordinary rafts, it was the plaintiff’s own folly and he could not recover.

*Thirdly*— That if the injury resulted from puré" accident, and without any negligence on the part of the defendant, then it was a case of loss without injury, and the plaintiff could not recover.

The Court charged the jury upon the first point: That for the purposes of this action, so far as the plaintiff’s title to the bridge was involved, it was sufficient for the plaintiff to show, that he was in the peaceable possession of the bridge and receiving the tolls.

Upon the second point he charged, That if the bridge was weak, it only affected the measure of damages, but not the plaintiff’s right to recover.

*218And upon the third point, That to entitle the plaintiff to recover, he must satisfy the jury, that there was negligence on the part of the defendant, either by himself or his agent — defendant being bound tó use ordinary care and diligence in the management of his raft: That the testimony made out a *'prima facie*case of negligence in the defendant, in permitting his raft to drift at large on the river, without any person in charge of it, whereby the plaintiff was injured, and it was for them to say, whether the defendant had explained this *prima facie*evidence of negligence on his part, by showing that the condition and situation of the raft was the result of accident, which could not have been avoided by ordinary care on his part. And the whole circumstances were submitted to the jui'y.

The jury returned a verdict in favor of the plaintiff. Whereupon, a rule upon the plaintiff was granted, that he should show cause why a new trial' should not be granted, upon the ground of misdirection, and the rejection of proper evidence: and upon argument the rule was discharged and the judgment given according to the verdict. The defendant prayed an appeal, which was allowed.

*Strange,*for the plaintiff.

D. *Reid*and *W. Winslow,*for the defendant, contended:

1st. ‘ The Judge erred in admitting the declarations of McKeller, def’d’t’s. agent. What an agent says within the scope of his authority is evidence against his principal, but any declaration of his own, and not as the instrument of his principal, is not evidence. *Saund. PI. and Ev.*53. 1 *Stark, on Ev.*60. *Langhorn*v. *Alnutt,*4 Taunt, 519.

2nd. The agent was a competent witness for defendant, unless evidence had been given of *his*negligence. In this case no evidence had been given of negligence on the part of the agent. *Stark, on Ev, part*4,768.

*2193d. The plaintiff was in fault himself, and cannot recover. *Flower*v. *Adam, 2*Taun. 314, *Bridge*v. *Grand Junction Railway*Company, 3 M. and W. 546, *Butterfield*v. *Forrester,*11 East. 60, *Blackwell*v. *Wilson, 5*C. and P. 375, *Rathburn*v. *Payne,*19 Wend. 379.

4th. The Judge erred in charging the jury, that “ the testimony made out a *prima facie*case of negligence,” &c. The question of negligence is for the jury. *Rice*v. *Rigby,*4 B. and A. *202, Smith*v. *Horne,*Holt’s C. 643, *Star Me on Ev. part 4, 973.*

Battle, J.

Upon the question, whether H. McKeller, a witness called for the defendant, was competent to tesf< tify for him under the circumstances, in which he was offered, we differ from the Judge who presided at the trial. The case states, that; it was admitted that the witness was agent for the defendant, but whether he was a general or special agent, whether he was an agent only to carry the raft of timber to Wilmington or only an agent to receive it there and sell it for the benefit of his principal, is not shown. An agent, as such, is not necessarily incompetent to testify for his principal. He can be excluded only on the ground of interest. If an action be brought against his principal for an injury, sustained by reason of the agent’s negligence or misconduct, then he is directly interested in the event of the suit, because he is responsible over to his principal for the- amount of the damages recovered against him. 1 *Stark, on Ev.*112, 113. Now in this case there was no evidence that the injury to the plaintiff’s bridge was caused by the negligence or misconduct of the witness. It does not appear that he had charge of the raft, at the time when it was carried by the tide against the bridge. From all that is shown, the raft might then have been under the charge of the defendant himself or of another agent. The first that we hear of MeKeller is the day after the injury, when he went to *220the bridge for the purpose of securing the raft and carrying it to Wilmington. He then admitted his agency, but when it was assumed and'what was the nature and extent of it, was not stated. It seems to us, that the facts and circumstances, making out a *prima facie*case of responsibility to his principal, should have been shown before the witness was excluded; and if such had been shown, then the defendant ought to have been permitted to examine him on his *voire*dire, to explain his real situation. 1 *Stdrk. on Ev.*123.

For the improper exclusion of the testimony of the witness, McKeller, a new trial must be granted: and as the case may then assume a very different aspect from that which it now presents, it is unnecessary for us to decide the other questions presented in the record. The judgment is reversed and a new trial granted.

Per Curiam. Judgment reversed and new trial granted.