The first question to be considered is, did the court err in declining to entertain the defendant’s demurrer? The reason of the court given in the bill of exceptions is “The court refused to allow said demurrer to be taken and filed by the defendant, because under the rules established by this court, the said demurrer should have been taken on Saturday, the 31st day of Octobei’, 1874, and the eleventh day of this term, or on the Saturday preceding said last mentioned day.” We do not decide whether a circuit court has under the law, the right to regulate the times at which pleadings may be filed in court, as no such point fairly arises upon the record in this case, no rule of court being certified in .the record. No reason appears in the record sufficient to show that the defendant had not the fright to demur when it did ; and it was error to refuse to allow the demurrer to be filed, provided such refusal was to the prejudice of the defendant. An error not prejudicial to the rights of the party against whom it is committed will not be held sufficient in this court to reverse the judgment of the court below. This is so well settled, that it is not deemed necessary to cite any authority to sustain it.
If the demurrer, had it been entertained by the court, should have been overruled, or in .other words, if. the *105declaration and each count thereof is good, then no error has been committed in this respect to the prejudice of the defendant. No objection is here urged to the first two counts of the declaration, and the Court sees no objection to them, but it is insisted in the argument that the third count in the declaration is fatally defective, on the ground that it presented two distinct causes of action.
The count is as follows:
“ And for this, also, that on the day and at the place last above'mentioned, the said plaintiff was possessed of a certain valuable colt, which was then and there, by permission of the owner of the field, lawfully grazing in a field adjoining the railroad track of said company, into which field the servants of the defendant, by its order and direction, entered to cut a tree standing therein, and in order to cut said tree, and in the cutting thereof, the defendant, through his said'servants in and about the matter employed by him, then and there carelessly, negligently, improperly and unlawfully put and left the fence down which separated said field from his said track, whereby the said colt of the plaintiff then and there came upon the said track; and the defendant was then and there possessed of a certain railway steani engine, under the care, government and direction of a certain then employe .and servant of the defendant, who was then and there engineering and running said engine, and the defendant then and there, by his said servant, so carelessly, unlawfully and improperly drove, engineered and ran the said steam engine, that by and through the carelessness, negligence and improper conduct of the defendant in putting and leaving down the said fence as aforesaid, and by and through the carelessness of said defendant in running the said engine, the said engine then and there ran over, struck and killed the said last mentioned colt of the plaintiff, without any default on her part, and to her damage, $300.00. By reason of which several wrongs the plaintiff has suffered great loss and damage, to the amount of $300.00, and, therefore, she sues.”
*106^ is ai'so insisted that- one of the causes of action thus presented is too remote to sustain an action thereon.
We do not think this position well taken, for if the plaintiff had taken the precaution to put her colt in a field where it would be prevented from going into danger upon the railroad track, and the defendant let the colt out by putting the fence down and. thereby the colt went upon the track and was killed, the killing would be the natural result of the carelessness of the defendant in letting the colt out of the field and upon the track of the railroad, and the plaintiff would, upon that state of facts, certainly be entitled to recover.
Is the count bad for duplicity, in setting forth two causes of action, one for killing the colt by the carelessness of the defendant in putting the fence down, and the other for .killing it by negligently and carelessly. running the defendant’s engine on the road ? At common law we think the count would have been bad, but could have been taken advantage of only on special demurrer, the objection being to the form and not to the substance. Kennaird &c. v. Jones, 9 Gratt., 189.
In King v. Howard, 1 Cush., 141, the court, by Wilde J. said, “The defendant objected to the declaration for duplicity, and this objection was overruled and we think rightly; for duplicity can be taken advantage of by special demurrer only according to a well-known rule of pleading; and now special demurrer being abolish-' ed, this1 objection cannot be maintained in any case.”
Sec. 29 of chapter 125, of the Code of West Virginia, provides that “ on a demurrer (unless it be to a plea in abatement) the court shall not regard any defect or imperfection in the declaration or pleadings whether it has heretofore been deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defence, that judgment according.to law and the very right of the case cannot be given.” ■
This language was incorporated into the Code of Virginia at the revisal of 1849, and to this part of the *107section there is the following note, “ This section is so framed as to prevent a demurrer being sustained to any pleading for such matters of form, as heretofore were quired to be specially alleged as causes of demurrer, and which, if so alleged, were available; its effect is to abolish special demurrers.”
The supreme court of appeals of Virginia have held this to be the effect of the said section. Smith’s adm’r v. Lloyd ex’or, 16 Gratt., 313.
As the statute of jeofails abolished all special demurrers; me're duplicity in a declaration is now no ground of demurrer. Therefore, if the court had allowed the demurrer to have been filed, it would have been compelled to have Overruled it. The count being good, the defendant has no ground of complaint, because the demurrer-was not filed.
The point presented by the third bill of exceptions will next be considered. This bill, is to the ruling of the court in refusing to exclude the following portion of the testimony of Robert W. Baylor. “ That after witness saw said employes (the employes of the defendant) come to John M. Coyle’s land, and commenced cutting trees on his land, he went down .where they were, and asked them what they were doing, and what authority they had for cutting the timber, and section “ boss ” who had charge of the hands told him that he had been ordered by the railroad,' to cut all the trees along the line, and that they had cut all the trees from Summit Point down ; that he ordered them to quit, and they did so and left his land.” This bill refers to bill of exception number two which certifies the evidence. Did the court err in refusing to exclude this testimony ?
The counsel for plaintiff argues that the tendency of this testimony was to prove the fact that a servant of the company had cut a cherry tree near the railroad track, which testimony was subsequently connected with plaintiff’s case, by proof that the cherry tree could not have been cut without letting down the fence through which the colt escaped.
*108The fact of cutting the tree, it is further contended, tended to establish an important link in the chain of evidence to.sustain the third count in the declaration.
The general rule as to the admission of the declarations of an agent to bind the principal is well settled. Greenleaf, in his work on Evidence, vol. 1,.§113, thus states it:
“ Where the acts of the agent will bind the principal, there, his representations, declarations and admissions, respecting the subject matter, will also bind him, if made at the same time, and constituting part of the res gestee."
Unless such declarations form a part of the res gestee, they are inadmissable. Sisson. v. Cleveland and Toledo Railroad Company, 14 Mich., 489; Smith’s adm’r v. Beltz et al., 11 Gratt., 763; Baltimore and Ohio Railroad Company v. Christie, 5 W. Va., 325; Thallheimer v. Brinckshoff, 4 Wend., 394; Virginia and Tennessee Railroad Company v. Sayler, 26 Gratt., 350.
We have seen no case in which the declarations of the agent have been received as evidence, unless such declarations were made at the time the wrong, or act, for which the principal was responsible, was done, and was, therefore, a part of the res gesta. The wrong in this case, according to the part of the third count in the declaration, to which the proof was directed, consisted of two things: first, the negligence of the defendant inputting and leaning the fence down, through which the colt strayed upon the railroad track; and secondly, killing the colt on the track. How could they prove the fact that the defendant, by its agent, put and left the fence down ? It could have been done by putting the agent himself on the stand ; or it could have been done by proving, by some one else who knew the party to be the agent of the defendant, that he was such agent, and-while acting within the scope of his authority,-put and left down the fence; or by some witness that he saw the man, who was the agent of the defendant, cut the cherry tree, and to enable him to do it, put down the fence, and • *109while in the act, the man told him he was ordered by the said railroad company to cut down the tree. But could' the plaintiff prove, under that part of the count above; mentioned, first, that the tree was cut down; secondly, that the tree could not have been cut without putting down the fence; thirdly, that the fence was down after the tree was cut; and to prove the most material fact, that the defendant put down the fence, introduce the declaration of the agent of the road while he was cutting a tree on another man’s farm; “that he had been ordered by the railroad to cut all the trees along the line of the road and that they had cut. them from Summit Point down.” Cutting the tree was not the material fact to be proven, but who put down the fence was, and we cannot see how according to reason or authority, the proof of the declaration of the section “ boss ” on another farm and while cutting another tree at a different time, that he had been ordered by the defendant to “ cut all the trees on the line of the road and that they had cut them from Summit Point down, ” could form any part of the res gestee in the case, and be admissable testimony.
It is argued that the declaration was a part of the res gestee, because the cutting of the trees along the line of the roacl, was one continuous act of the defendant, if that be so, then why would not the same declaration of the section “ boss ” have been admissable in the case if made nearStaunton, a hundred miles above, had the road extended that far under the control of the defendant, six months after if it had been made while the hands had been cutting a tree in pursuance of said order ? Again, the issue was not who cut the tree ? but who put the fence down? Had it been an action of trespass for cutting timber on the farm of Coyle, I apprehend it would not be admissable to prove the trespass on Coyle’s land to give in evidence, a declaration made by a party who was the agent of the defendant while committing a trespass by cutting timber on Baylor’s land, even if that declaration was “ that he had been ordered by the *1101’ailroacl to cat all the timber on the, line of the road. We think it would be dangerous to admit such testimony and are not disposed to extend the rule as to the admission of such testimony any farther than the adjudicated cases have gone in' that direction.
The point raised in the second bill of exceptions is, that the court erred in refusing to exclude the following portion of the testimony of Baylor : “The said employes commenced cutting trees on the land of. witness.” This language occurs in the testimony of the witness Baylor, as set out in bill of exceptions number two. If the declaration of the section “boss” had been admissable so would the fact that the employes of the road came on the land of witness, and commenced cutting trees there, as it was but an introduction to the testimony, but as that should have been excluded, so should this, as it was wholly irrelevant.
The fourth bill of exceptions was to the refusal of the of the court to give two instructions asked by the defendant ; the first was: “The court instructs the jury, that there is no law in this state requiring the defendant to fence its railroad track, and that the defendant has the right to the exclusive and complete possession, and entire control of said track, including a tract of land on each side thereof, and not less than twenty feet from the centre thereof; and that all property or persons on said track, or within said limits, unless by permission, express or implied, of the defendant, are trespassers thereon; and if such property so on the track is killed, without gross carelessness or wantonness, the company is not liable.”
The eourt properly refused this instruction, as it does not propound the law correctly. In the case of Baylor v. B. & O. R. R., 9 W. Va., the court held “ that although a railroad company has the right to the free and uninterrupted use of its track, and the paramount duty of its employes is the protection of the train, the passengers, and the property therein, yet, such employes are bound *111to use ordinary care and diligence, so as not unnecessarily to injure the property of others on the track; it being the duty of the servants of the railroad company, so far as consistent with their other and paramount duties, to use ordinary care to avoid injuring cattle on their track; they are bound to adopt the ordinary precautions to discover danger, as well as avoid its consequences after it becomes known.” The instruction is entirely inconsistent with the law as above stated, and would hold the railroad company to very slight or no care at all.
The second instruction presupposes that the fence through which the colt escaped, was built on the company's land. Of this there was no evidence in the case and the instruction was calculated to mislead the jury, and was irrelevant.
The fifth bill of exceptions was to the giving of the following instruction:
“ The court instructs the jury that although the facts, that the defendant's servant put and left down the gap, in the declaration mentioned, and that the plaintiff's colt came through this gap, upon the railway, must be proven by the plaintiff, yet they need not be proven by any direct evidence, but it will be sufficient for the plaintiff to prove these facts, by evidence of other facts and circumstances, which satisfactorily lead the jury to this conclusion.”
The instruction is vague and indefinite and calculated to mislead the jury. No facts are enumerated, and no indication is given to the jury, from what facts, or class of facts, they would be authorized to draw the conclusion that the defendant's servant put and left down the fence; and that the defendant -killed the colt. The instruction must have been based upon the evidence before the jury, and, the most material evidence from which an inference could have been drawD that the defendant's servant put and left the fence down, was the portion of the evidence of Baylor, which has been considered; and having come to the conclusion that Baylor’s evidence as to the declara-*112^on defendant’s servant was improperly left to the jury, the instruction was clearly wrong, and ought not to have been given.
It is unnecessary to consider the points raised in the sixth bill ot exceptions, so far as it relates to the motion for a new trial, on the ground that the evidence was not sufficient to warrant the verdict. The other points in said bill raised, we have already considered.
For the foregoing reasons, the judgment of the circuit court of Jefferson county rendered, on the 18th day of November, 1874, is reversed, with costs, and this Court proceeding to render such judgment as the court below should have rendered, it is considered by the Court, that the verdict of the jury rendered in this case be set aside and a new trial awarded the defendant; the costs in the circuit court to abide the event of the suit; and this. cause is remanded to the circuit court of Jefferson county, for further proceeding to be had therein according to. the principles of this opinion, and further according to . law.
JUDGMENT Reversed and case remanded.