*100O Í I » I O i

Míe defendant oarrier furnished to plaintiff a defective tank oar from which a quantity of creosote 411 leaked^and was lost.

She defense is in effeot that the oil was lost.wholly through plaintiff's own negligence.

Prank Keshner foreman for plaintiff at that time and for three years afterwards, but not now in its employ,.testified that the oar was delivered at plaintiff's plant on a Sunday morning and loaded late that evening: that he discovered the leak about six o'clock next momia that he notified plaintiff's general manager by telephone; that the oar oould not be toloaded where it stood, and oould not be moved to the unloading plaoe because of other loaded cars between it and the plaoe for unloading; that he at once procured a wash tub from his home nearbj and put two men with buckets to carry off the oil; that a latee quanti' of oil was thus saved; that about nine o'clock next morning the switch: orew arrived and pulled the car to where it oould be unloaded; that thi oontents of the car were then gauged by the manager and unloaded; that ho oould not say how much oil was saved by tjie men with buckets. j

R. M. lynch, the general manager for plaintiff, and now conneote| with it, testified that Keshner the foreman notified him of the leak monday morning by telephone; that he at once notified defendant's I representative, (Mr. Comstock, who died since then; but# the witness not know it); that the latter askeS him to have the car unloaded as sc| as possible; that he telephoned the connecting oarrier on whose line plant is situated for a switch engine and orew to plaoe the car wherj it^be unloaded; that when he reaohed the plant the car was not at thel unloading plaoe, but about nine o'clock a switch engine arrived and p| the car where it oould be unloaded; that he thereupon at once guaged oontents and had them pumped into plaintiffs tanks; and the oar^remov

Por the defendant, three members of a switching crew of the con oarrier, testified that the oar was placed at the plant on Sunday moil that they called for it about four o'clock the same evening: that thj *101ir was then loaded• that they saw the leak, which was large and plainly Lsible, and called the attention of plaintiffs foreman thereto; that ley moved the car at once to where it could be unloaded, and then left; at they called in regular oourse about nine o'clock next morning, and und the oar unloaded, and removed it.

A clerk also ######### in the employ of the connecting carrier, stifled that he received no telephone call for an engine on the Monday rning; but his testimony is of no value, for he testified only "from 9 record", independently of whioh he had no recollection; and the :ord was not produced.

The defendant also offered to prove by this last witness that four iths after the occurence in question, the witness Keshner admitted to i that the leak had been discovered before noon on Sunday. It also 'ered to prove by smother witness that on three several occasions, fom . e and six months after the occurrence Keshner made the same admission him. But the trial judge exoluded this evidence.

1.

In addition to the faot that the trial judge, who saw and heard the nesses, did not accept the version given by those for the defendant, e are oertain points about their testimony which make it also impossible us to do so.

1. The first and third witnesses had, before testifying, refreshed |ir memories from records and made by themselves; one of them not even hining the original record, but relying upon a letter from the party bosed to have kept the record; the other "had to go to the record to pore positive."

2. The second witness, when asked whether any oil had been saved, lered, "I did see two barrels of oreosote oil alongside of the fenoe;" Ih, if it has any meaning, either renders superfluous, and therefore |kely, the giving of notice to Keshner, or corrobprates the latter* nony.

3. It is inconceivable that the car was at the unloading place its contents could have been unloaded in a moment, and that Keshner, la "home" tp provide for, should have been so reckless of holding his *102position as to let several hundred dollars worth of oil leak out right where his employer must perceive it the first thing, and see at once the gross stupidity or wanton indifferenoe of his hired man.

4. It is even more inconceivable that Lynch, supposedly oapable of holding a manager's position in a large business, should have retained for an hour, not to say fot three years, an wmployee as incompetent or unfaithful as defendant's witness would §####### make out Keshner to be.

11.

The trial judge erred technically in excluding the testimony as to alleged admissions made by Keshner after the ooourrenoe. These were doubtless admissible for the purpose for which they were offered, to wit, to impeaoh him as a witness by showing alleged contradictory statements.

But we will no more believe that Keshner would, wholly gratuitously, jeopardise his position on four different occasions than that he did so on only one occasion. Such testimony would therefore oarry no weight with us, and sinoe it would not change the result it woyld serve no purpose to remand the case in order to have it heard.

"A cause will not be remandad for the admission of evidence even though improperly exoluded, when the evidence is such that, even if admitted the result would not be changed." Miller vs lafontaine, 8 Court of Appeal 162. Rhea vs Thompson Motor Co, Bo. 7144 flately deolded).

111.

Defendant is clearly entitled to credit for the oil saved by means of the wash tub and buckets. As plaintiff can not fix the amount we must allow for the most that oould have been saved in the time when these were in use. The car was loaded late Sunday evening, say six o'clock, and was Monday unloaded late IHUtétíIfMti# morning: this was fifteen hours. The leak was discovered at six o'clock Monday morning? or three hours before it was unloaded. One fifth of the leakage must have oooured in that timSj and it is possible that this one fifth was saved. The judgment must therefore be reduced accordingly.

It if therefore ordered that the judgment appealed from be reduced from Í889.3T to |S03.5Q (five hundred and three 60/100 Dollars) and as thus amended the judgment la affirmed: plaintiff'to pay costs of this court and defendant tha costs of the oourt below.