My dissent is based on the ground that the matters embraced in instruction No. 14 asked by the defendant and refused by the court is substantially covered by instruction No. 5, which was given and reads as follows:
"The defendant, Pine Bluff Company, is claiming that the connection between its high tension wire and its guy wire was made by a connecting wire which was placed between the two wires by some third person. The burden is upon the Pine Bluff Company to show by a preponderance of the evidence that the said connecting wire was actually placed there by some third person, and even this would be no defense against its liability in this case unless it has also shown by a preponderance of the evidence that the dangerous condition of its guy wire could not have been detected and corrected by the exercise on its part of ordinary and reasonable care in time to have prevented the injuries sustained by Lawson Bobbitt."
Instruction No. 14 is set out in the majority opinion and need not be repeated here. I believe a comparison *Page 1026 of the two instructions shows that the instruction given fully and fairly covers the matters embraced in the refused instruction, and it is well settled that the trial court need not repeat instructions on the same phase of the case. Neither do I think that any prejudice resulted from the admission of evidence as indicated in the opinion.
HUMPHREYS, J., (on rehearing). On motion for rehearing, learned counsel for appellee strenuously insist that this court erred in admitting the testimony of Max Fry to the effect that Flint Green who was working for appellant, attempted to induce him to admit that he had attached the foreign wire to the two wires in question, upon a promise that appellant would pay his fine. It is urged that this testimony was admissible for the purpose of impeaching P. C. Tucker, one of appellant's witnesses, who testified that Clint Green did not tell Max Fry that if he would admit attaching the foreign wire to the other two wires, the company would pay his fine. Appellant did not ask Tucker anything about this matter on direct examination. Appellee propounded the question to Tucker on cross-examination. Tucker denied that any such conversation occurred. The purported subject-matter of the conversation was incompetent and entirely collateral. Appellee was bound by the negative answer of Tucker and had no right to impeach his statement, same being collateral and incompetent as original testimony. Furlow v. United Oil Mills, 104 Ark. 489. Appellant objected and excepted to the introduction of Max Fry's testimony in this particular, and did not waive the error committed by the court in admitting it by afterwards introducing the testimony of Basham in contradiction of Fry's statement. It was the privilege of appellant, after saving its exception to the inadmissible and prejudicial testimony of Fry, to remove the damaging effect thereof, if possible, by the introduction of testimony in contradiction of his statement. *Page 1027
As the reversal of the judgment must stand on account of the error of the trial court in admitting Fry's testimony, we deem it unnecessary to decide whether instruction No. 14 requested by appellant and refused by the court was fully covered by instructions Nos. 5 and 6 requested by appellee and given by the court. We think, on a retrial of the cause, instruction No. 14 should be given as an alternative instruction affirmatively presenting appellant's theory of the case.
The motion for rehearing is overruled.