#### HENRY BARNES, Administrator, v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 2 April, 1913.)

1. Railroads — Negligence—Principal and Agent — Scope of Agent’s Authority — Declaration—Rumors—Hearsay Evidence.

Where a railroad eomypany is sued for the negligent killing of plaintiff’s intestate, a fireman on defendant’s train, owing to an alleged negligent defect in defendant’s waterspout he was required to use in filling the locomotive with water, declarations of .a station hand as to the condition of the spout, in plaintiff’s favor, are not within the scope of the declarant’s agency, and inadmissible as hearsay; likewise, rumors in the neighborhood to that effect, the latter being of less probative _ force than the former.

2. Evidence — Instructions—Testimony of One Witness — Appeal and Error.

Where damages are sought of a railroad company for negligence failing to supply its fireman with a proper appliance for his work, resulting in injury, and only one witness, defendant’s engineer, had testified to a certain state of facts bearing thereon, a charge of the court that if the jury believed the injury occurred as one of the engineers said it did, particularizing the testimony, to answer the issue of contributory negligence “Yes,” is no.t objectionable as singling out the evidence of one witness for the instruction, the instruction being upon the only evidence offered on that phase and pointed out to the jury by giving the name of the witness testifying thereto.

Appeal by plaintiff from Webb, J., at September Term, 1912, of Robeson.

Civil action. These issues were submitted:

*5821. Was tbe death of plaintiff’s intestate caused by tbe negligence of tbe defendant, as alleged in tbe'complaint? Answer: No.

2. Did tbe plaintiff’s intestate by bis own negligence contribute to bis injury, as alleged in tbe answer?

3. What damage, if any, is tbe plaintiff entitled to recover of tbe defendant on account of tbe alleged injury?

Plaintiff appealed.

McNeill & McNeill for plaintiff.

McLean, Varser & McLean for defendant.

BkowN, J.

Plaintiff’s intestate, John Stafford, was a fireman in tbe employ of defendant. He was killed at a water tank near Pembroke on defendant’s railway. Plaintiff contends that tbe waterspout was broken and defective, and, because of its defective condition, suddenly broke from its attachments and struck Stafford and killed him. Tbe defendant contends that Stafford went out on tbe tender to fill it from tbe spout, lost bis balance accidentally, fell and was killed'; that tbe spout and attachments were in good condition and not defective. Tbe jury so found, and answered tbe first issue “No.”

Tbe plaintiff offered tbe declarations of Fulton Carter concerning this matter and proposed to prove them by William Lowrie. They were properly excluded. Carter was a station band, and tbe alleged declarations were not within tbe scope of bis authority. They are hearsay in every sense. Lytton v. Manufacturing Co., 157 N. C., 331; Younce v. Lumber Co., 155 N. C., 241; Rumbough v. Improvement Co., 112 N. C., 751.

Tbe plaintiff .offered to prove that tbe condition of tbe tank “got to be a subject of neighborhood comment.” A rumor is inferior in probative quality to hearsay, and is incompetent as evidence to establish a fact. Hopkins v. Hopkins, 132 N. C., 25; Starkweather v. Benjamin, 32 Mich., 305; 16 Cyc., 1213.

Tbe plaintiff excepts to tbe following extract from tbe charge: “If you find that it occurred in tbe way and manner one of tbe engineers said it occurred, that be went up on tbe *583tank and tbe spout was banging up in its proper condition after tbe man fell; if you find that plaintiff’s intestate was standing on tbe tender and tbe chain got caugbt, and tbe engineer told bim to unloose tbe chain, and while be unloosed tbe chain be fell, slipped and fell to tbe ground, tbe court charges you that it would be your duty to answer tbe first issue ‘No’ and to answer tbe second issue ‘Yes.’ ”

It is contended by plaintiff that bis Honor in this portion of bis charge singled out one witness, and told tbe jury if they believed this witness to find for tbe defendant.

We do not think tbe charge is such an infraction of tbe rule as to warrant a new trial. Tbe charge merely states tbe facts and recites them to tbe jury, and instructed them substantially to answer tbe first issue “No,” if they so found tbe facts.

A reference to tbe witness as one of tbe engineers, without calling bis name, and be tbe only one who testified to these especial facts, could not well have bad any prejudicial effect upon tbe minds of tbe jury.

His Honor bad already fully and clearly stated all tbe contentions and evidence relied upon by tbe plaintiff.

Upon a perusal of tbe evidence and tbe entire charge of tbe court, we fail to find any substantial error. Tbe learned judge who tried tbe case below seems to have been lenient to tbe plaintiff in tbe admission of evidence and in bis charge to tbe jury. He not only stated at length tbe contentions of tbe plaintiff in their strongest light, but gave to tbe plaintiff an unusually exhaustive and fair charge upon tbe law bearing upon the issues.

Tbe case seems to have turned entirely upon tbe condition of tbe tank, and involved solely an issue of fact.

Tbe plaintiff offered evidence tending to prove that tbe spout was defective. Tbe defendant introduced ten witnesses who' testified that they used tbe spout shortly after tbe accident, and that it was not defective in any particular. This question was fairly presented to tbe jury and resolved in favor of tbe defendant. We find

No error.