This was an action to recover damages for the unskillful construction oí the chimneys of the steamer Swan, and the negligence of the officers and servants of the company, in running tue vessel upon the Sacramento River; in consequence of which the crop of grain belonging to plaintiff, on the bank of the stream-was ei> on fire and consumed by sparks issuing from the chim, neya ol the boat, in July, 1856. The plaintiff obtained a verdict and ;udgment in the Court below, and the defendant appealed.

The first point made by the counsel of defendant is that the Court erred, in admitting evidence of the declarations of the master.

The declarations of the master were proved by the witness, McConoughay, who states, substantially, that he was a passenger upon the boat at the time; that he saw sparks and pieces of bark on fire, dying out of the chimneys and lighting on the grass, along the edge of the river on both banks; that the wind was blowing pretty hard at the time, and the fire immediately communicated to grass, grain, or anything that was near; and that he saw the fire entering into the grain of plaintiff, which was consumed. The plaintiff then asked the witness this question :

The answer of the witness was:

The question and answer were objected to by defendant; the objection was overruled, and the defendant excepted.

The declarations of an agent will bind the principal, if made during the continuance of the agency, and at the very time of the transaction. These declarations, when thus made, are considered as part of the res gestee. (Story on Agency, §§ 134, 135; Greenl. E., § 113.

The question to determine is, whether these declarations of the master did constitute a part of the res gestee. In the case of Innes v. the Steamer Senator, (1 Cal. R., 461,) it was held by Bennett, Justice, that the declarations of the master, made the next morning after the collision, were no part of the res gestee. So, in the case of Mateer v. Brown (1 Cal. R., 224,) it was held, that the declarations of a barkeeper were not binding upon his principal, when not made in the discharge of his duty. The defendant, in that case, was an innkeeper, and the plaintiff left a package of gold-dust with the barkeeper. The declarations were not made by the barkeeper at the time he received the deposit, but afterwards, when he took the bundle out of the closet to exhibit it to a stranger. This Court held that the act of exhibiting -the package to a stranger was not done in the discharge of his duties as barkeeper, and his declarations were, therefore, but hearsay.

But the circumstances of the present case are different. It appears clearly from, the testimony, that the fire was communicated from the chimneys of the steamer to the shore, at places below, opposite, and above the farm of the plaintiff. This occurred on the same day, and was but one continuous act; ttnd the declarations of the master were made during this period, and while the boat was running under his command. We think these declarations were clearly admissible.

The second point made by the learned counsel of defendant is that the Court erred in overruling the motion for a nonsuit, there being no evidence of negligence on the part of the defendant.

The general rule upon this subject is laid down with great clearness by Cowen, (Cow. Trea., 384.) Speaking of the action of trespass on the case, he says:

In the case of Radcliff’s Executors v. Mayor and others, of *257 Brooklyn, Bronson, C. J., has very ably reviewed the authorities upon this question. The learned Chief Justice has stated the true rule in these clear and concise words : “An act done under lawful authority, if done in a proper manner, can never subject the party to an action, whatever consequences may follow." (4 Com., 200.)

The act must first he lawful; and second, it must be done in a proper manner to excuse a resulting injury.

The right of the defendant to navigate the Sacramento River with steamers, at all seasons of the year, cannot be questioned. The only question is whether there was negligence in exercising this lawful right.

We have been referred by the counsel of defendant to the cases of Stewart v. Hawley, ( 22 Barb., 619 ,) and Rood v. Hew York and Erie Railroad Company, ( 18 Barb., 80 .) In the first case, the defendant set fire to his fallow, which had been previously burned over. Three days afterwards, the wind blew violently, and the fire communicated to an adjoining pasture, across which it passed to the plaintiff's premises, and burned his grass crops, etc. The Court held that the defendant was not liable. The fire was set in the dry season, in July, but in low swamp ground that had been burned over in the previous month of May. There was no brush near, and and the fire was set on a day which looked likely for rain. The Court evidently laid much stress on the fact that the spreading of the fire was the consequence of the high wind, that arose three days afterwards. In the second case, it appeared that the plaintiff had sold to the Company a strip of land for the road, of the value of sixty dollars, for the sum of one thousand six hundred dollars; and the Court held, that it was “ but fair to presume that, in giving his deed to the defendant, the plaintiff must have contemplated the risk of fire from engines running on the road." It was, therefore, held, that the defendant was only responsible to the plaintiff for ordinary care and diligence in the manner of using its road. It was also held, in that case, that authority to use a steam-engine upon the road was an authority to emit sparks therefrom; and, if the most approved means which science and skill have invented are applied to prevent sparks from causing injuries, the company is not liable in case damage is occasioned by fire communicated in that manner. The company in that case, had used the most extraordinary precautions, by furnishing their engines with the most approved spark-catchers, and by supplying the road with sectional superintendents, section-masters, and subordinate watchmen.

The counsel of plaintiff have referred to the case of Haylett v. Philadelphia and Reading Railroad Company. (23 Penn. State R., 373.) It was proved, in that case, that the road passed seventy-seven feet from the dwelling-house of the plaintiff, and that *258 the house was set on fire by sparks from engines, passing at a time when the weather was very dry and windy, and the wind blowing strong across the road to plaintiff's house. Sparks were seen flying from the engines to the distance of fifty yards from the road, and fences and fields were set on fire about the same time, and at considerable distances-from the road. The defendants proved that all their engines were in good order, and were all provided with good spark-catchers. On this state of facts, the Court below directed the jury to find for the defendant; but the Supreme Court reversed the judgment, holding that it was a question for the jury to determine, under the circumstances of that case, whether the injury was caused by the carelessness of the defendant’s servants. In delivering the opinion of the Court, Lowry, J., said :

The Court further said that railroad companies

The doctrine laid down in that case seems to be the true rule. The Company have the right to use steam-power in propelling cars on railroads, or boats on the rivers, but it must provide all reasonable precautions, to protect the property of others; and these means of prevention must not only be provided, but they must be properly used. Carelessness in either particular, accompanied with injury to any innocent party, will make the company liable. What facts and circumstances constitute evidence of carelessness, is a question of law for the Courts to determine. But what particular weight the jury will give to these facts and circumstances, is a matter for the jury.

In the present case it was informally, though substantially, alleged in the verified complaint, that the chimneys of the Swan were not furnished with spark-catchers. This allegation is not specifically denied in the answer, and must be taken as confessed. This admission is evidence of carelessness, and taken in connec *259 tion with the other testimony, justified the Court in refusing a nonsuit, and amply sustains the verdict of the jury.

The third and fourth points of defendant have been substantially disposed of in our decision of the first and second. Judgment affirmed/