This was an action under the statute
That some of defendants’ servants were guilty of negligence which caused the collision was almost conclusively established by the evidence. Hence, a vital, and perhaps the decisive, question in the case was whether the intestate was a “passenger” on defendants’ train; and in determining this the important question was whether the deceased, before he took passage on the train, was informed of the fact that it was against the rules of the company, and that the conductor had no authority, to carry passengers on that train. So far as appears, the intestate and the conductor were the only parties who knew what passed between them; and, as the former was dead, the whole matter rested in the breast of the conductor. Moreover, while it appeared that the witness was no longer in the employment of the defendants, yet he would naturally be inclined to excuse himself for violating the rules of the road.
In one of these letters the witness evinced a corrupt disposition to make his testimony in this case depend upon the pecuniary or other valuable consideration that might be offered him. And while his mere opinion as to whether or not the plantiff had “a good case” against the railroad was immaterial, it is a material fact that in the other letter, while, purporting to state the facts to the plaintiff, the witness made no mention of the vital fact to which he testified, viz. that he told the intestate that it was against the rules of the company, and that he had no authority to carry passengers on that train. A trial court has unquestionably considerable discretion in determining how far the cross-examination of a witness may be extended for the purpose of his impeachment or otherwise testing the credibility of his testimony; but these letters (especially Exhibit D) went so directly to the disposition of the witness to conceal or pervert the truth in this case that we think the court erred in not admitting them in evidence, and the prejudice resulting from this error is enhanced by the peculiar condition of things in this case already alluded to.
As a new trial must be ordered, it is unnecessary to consider any other questions. To remove a misapprehension under which counsel for the plaintiff seem to be laboring, we will add that, if it was against the rules of the railway company to carry passengers on this train, and the conductor had no authority to relax that rule, — in other words, if the conductor had no authority to carry passengers on that train, and the deceased was informed of that fact before he took passage, — then there was no relation of carrier and passenger between him and the defendants, and they owed him no duty as a passenger. If he induced the conductor to permit him to ride on the train knowing that it was against the rales of the company, and that in permitting him to take passage the conductor was acting without authority, and in
Order reversed.
G. S. 1894, § 5913.