The appellee alleges in her complaint that she was injured by falling into a ditch adjoining the appellant’s track in the city of North Vernon; that her injury was attributable to the negligence of the appellant, and that there was no contributory negligence on her part. The course of the argument pursued renders it unnecessary for us to do more than give an outline of the complaint.
*344There is no substantial merit in counsel’s contention that the plaintiff is required, in an action to recover for injuries caused by falling into an unguarded excavation, to aver that he was ignorant of the existence of the excavation. Knowledge is important as a matter of evidence, but it is not necessary to negative its existence where negligence is alleged and the general averment that the plaintiff was without fault is appropriately made. See authorities cited in Elliott on Roads and Streets, notes 1 and 2, p. 470. Ohio, etc., R. W. Co. v. Walker 113 Ind. 196, and cases cited; City of Anderson v. East, 117 Ind. 126 (130).
The rule that an employe who sues the employer for injuries sustained because of defective machinery or appliances must aver that he did not have knowledge of the defect, is well established. Louisville, etc., R. W. Co. v. Sandford, Admx., 117 Ind. 265, and cases cited; Louisville, etc., R. W. Co. v. Corps, 124 Ind. 427, and cases cited; Matchett v. Cincinnati, etc., R. W. Co., 132 Ind. 334. But this rule has no application to a case such as this, where a person rightfully crossing a public street falls into a ditch or pit wrongully left unguarded by a railway company under a duty to construct a safe crossing.
The trial court permitted the affidavit made in support of the application for a change of venue to be read in evidence over the objection of appellant’s counsel. It is undoubtedly a well established rule that an affidavit made in support of an application for a change of venue is not admissible in evidence. Conaway v. Shelton, 3 Ind. 334; Farman v. Lauman, 73 Ind. 568 (570); Paulman v. Claycomb, 75 Ind. 64 (68); Worley v. Moore, 97 Ind. 15 (21); School Town of Rochester v. Shaw, 100 Ind. 268 (270); Carter v. Carter, 101 Ind. 450 (454); Campbell v. Maher, 105 Ind. 383.
An affidavit for a change of venue is authorized by *345law, and the right to a change is not one to be embarrassed or burdened by permitting the adverse party to use the affidavit as an instrument of evidence. It is the duty of a trial judge to exclude from the jury instruments that can not be considered as evidence, and where such instruments go to the jury, over the objection of a party, there is an implied direction to the jury to regard that as evidence which they have no right to consider in any event or for any purpose. In this instance the appellee's counsel were permitted to refer to the affidavit in argument, and thus the error in admitting the affidavit was intensified.-
We have examined the case of Kankakee, etc., R. W. Co. v. Horan, 23 N. E. Rep. 621, but we do not think it applicable here, even if we concede the general doctrine it asserts to be correct. Our opinion is that the true rule is to exclude entirely from the jury all such instruments as affidavits for a change of venue or the like, and that their admission is to be regarded as prejudicial, unless it fully and clearly appears that no harm resulted from the introduction of the incompetent evidence. It can not be said in this case that the erroneous ruling was harmless.
The appellee was permitted to prove by Mr. Cope, who had been the mayor of the city of North Vernon, declarations and admissions made by Mr. Beecher, the general solicitor of the appellant, and of the ruling admitting this testimony complaint is made by appellant's counsel. It seems very clear to us that the legal adviser, or general counsel, of a railway company has no authority, by virtue of his general employment, to bind the company by declarations or admissions outside of the business of the law department, unless it is appropriately shown that he was invested with special or general authority con7 cerning matters outside of the law department, the scope *346of his authority is restricted to that department. Certainly, a natural person engaged in conducting a railway, or any other business, could not be bound by the admissions of a lawyer to whom he had entrusted his legal affairs, and there is no conceivable reason why the same rule should not apply to a corporation. There is no evidence tending to prove that Mr. Beecher was invested with authority concerning the use and occupancy of the street in which the excavation was made. In saying this, we are not unmindful of the fact that Mr. Cope testified that he had some correspondence with the officers of the company, but the letters were not given in evidence. If the letters gave Mr. Beecher authority, they constituted the primary evidence, and ought to have been produced in order to make his declarations competent. If Mr. Beecher had declared that he had authority in the special matter, his declarations would have been valueless, for an agent’s authority can not be established by his declarations. Mr. Beecher, however, made no such declaration.
It is argued by appellee’s counsel that there is such satisfactory evidence of constructive notice that even if there was error in admitting evidence of Mr. Beecher’s admissions it was harmlesss. We can not so regard the testimony. The declarations of Mr. Beecher were positive and direct, while the other evidence was circumstantial entirely, so that the evidence belonged to radically different classes. The declarations of Mr. Beecher, if competent at all, proved a positive promise, and was necessarily influential. It was not cumulative, because it was of an entirely different character from the other evidence.
Judgment reversed, with instructions to award a new trial.
*347Filed Dec. 16, 1892.Miller, J., did not take any part in the decision of this case.