On Rehearing.
Hughes, J.We said in the original opinion in this cause that “so much of this letter (referring to the letter of Etta Stroud to her husband) as was necessary or tended to show that the plaintiff’s purpose in going to the depot on the night of the 16th was to take the train for Hot Springs was competent and relative evidence, but the reading of it in full was not necessary for that purpose, aud it was calculated to excite the sympathies of the jurors, and prejudice them against the defendant, and was therefore erroneous.”
The reading of this letter was really unnecessary to show the defendant’s purpose in going to the. depot, for it was competent for him to testify as to this, and, having done so, he need not have read the letter to' show it, unless it was made necessary to corroborate his testimony by denial of the defendant that he had received such a letter, when it would have been proper to read it only to show, by way of corroboration, his purpose in going to the depot. The counsel for the plaintiff below have called our attention to the point that there was only a general objection to the reading of the letter, and this we find on further examination is true. Therefore the counsel’s contention that if any part of it was admissible all of it was is correct. If the defendant wished to exclude that part of it that was calculated to prejudice the jury against him, that is, that part of it relating to the sickness of the wife and daughter, he should have made a special objection to the reading of that part of the letter. It was not error for him to be allowed to read that part of the letter which showed that it con - tained a request for him to come to Hot Springs. This much tended to corroborate his testimony as to his purpose in going to the depot to take the train for Hot Springs on the night of the 16th. Having objected generally to the reading of the letter, the objection was properly overruled, and the letter was admissible to be read as evidence. Rice on Evidence no. 925 and 926; Camden v. Doremus, 3 How. (U. S.) 515.
As to the testimony of S. W. Williams and others, introduced over objection of defendant below, to show the character of Pat Gallagher, the watchman of the defendant, for violence and unfitness for his position, it was incompetent, for the reason that if he acted maliciously, violently and wrongfully, his principal, the railroad company, was liable, whether his character was good or bad,—as much liable as though the principal had been present, and had done the wrong, for, in contemplation of law, the principal was present in the person of the agent. In this case the question was, whether there was a specific wrong committed, and, if the proof showed there was, then, without regard to the character of Gallagher, the railroad company was liable, if at the time of the wrong, if any was done by Gallagher, he was acting within the scope of his employment. The case of Dunham v. Rackliff, 71 Maine, 345, was an action for damages alleged to have been caused by a collision between two teams in the night time. The court said in this case: “The plaintiff offered to show that the person by whom defendant’s team was driven was represented to be a careless driver, but the evidence was excluded, and properly. The issue was as to the negligence of the defendant’s servant at the time when and place where the injury occurred. It mattei’ed not how negligent he may have been in the past, if at the time of the collision there was no negligence nor want of care. * * * The reputation of the servant for skill or want of skill was not admissible as relevant testimony to the issue tried.” In an action by the servant against the master for the negligence of a fellow servant, the reputation of the fellow servant for negligence may be shown. “The law is well settled that the master is not liable in such ease, unless guilty of negligence in the selection of the servant negligently causing the injury complained of, and this negligence of the master must be averred in the declaration and established by proof.” Ib. p. 349; Blake v. Maine Central R. R., 70 Maine, 63. Such is the character of cases cited by counsel on this point in the brief on motion for re-consideration, and on this point the cases cited in the original opinion, though correct, are not applicable in this case, and are calculated to mislead. But tbe position of the court that in this case evidence as to the character of Gallagher, the watchman, was inadmissible is correct. The same ruling was made in the Railway Co. v. Hackett, 58 Ark. 389, where it was said “the testimony was clearly incompetent,” which counsel seems to think is a typographical error, and that it should have been competent instead of incompetent.
We said in the opinion that the latter clause of the fifth instruction given for the plaintiff, in which the court told the jury that if they found for the plaintiff they might assess damages, if any, caused by the anxiety he suffered, if any, on account of being kept from his wife and child at Hot Springs, was erroneous, because there was no evidence on which to base it. There was evidence that, at the time Stroud was expelled from the depot by Gallagher, there was a train coming south within about two hundred yards from the depot, upon which Stroud might have gone, which the appellee’s counsel suggests he did not take through fear of Gallagher, who had- made demonstrations of violence toward him. The evidence is that Stroud was expelled at 1:30 a. m., that a train passed at 2 o’clock a. m., another at 7 a. m. next morning, and a third at 1:45 p. m. next day, and there is no evidence that plaintiff could not have taken either one of these three trains. There is no showing that Stroud had received any information, between the passing of the first train south and the passing of the three last-mentioned, that the condition of his wife and child had improved. He remained over at Little Kock, it appears, to prosecute Gallagher. It was not proper, therefore to instruct the jury that they might award Stroud damages on account of his anxiety by reason of being kept away from his wife and child at Hot Springs. The proof shows that he could have suffered no anxiety on that account, and there was no evidence to base the instruction upon. The instruction was abstract and misleading.
The opinion is modified as indicated, and the motion is denied.