We are agreed that the trial court was right in determining that the questions (1) of defendant's negligence and (2) of freedom from contributory negligence, on the part of plaintiff's intestate, were for the jury. But we *Page 381 are divided in our view as to how we should answer the question, Was it error to permit plaintiff to prove, on cross-examination of defendant's witness, that the bell on the engine was ringing prior to the accident, at points several miles distant from the crossing where the accident occurred, and then permit him to prove in rebuttal of that which he had so drawn out, that the bell was not ringing at those points? If this question be answered in the affirmative, the judgment must be reversed, for the evidence received could not but have had very considerable weight with the jury. Indeed it is not impossible but it may have had controlling weight with the jurors' minds in passing upon the question whether defendant was guilty of negligence by failing to give notice, by the ringing of the bell or otherwise, of the very rapid approach of this train.
On the morning of February 25, 1900, and but shortly after midnight, plaintiff's intestate — while being taken across defendant's tracks, 229 feet east of the Farmington station, with her husband as driver — was struck and killed by one of defendant's engines, drawing a train at a very high rate of speed. Upon the trial plaintiff called four witnesses who testified that although close enough to have heard the bell had it been rung they did not hear it, while defendant produced thirteen witnesses who testified that they heard the whistle and bell as the train approached and passed the place of the accident. A number of the thirteen witnesses were passengers on the train, and others were not in defendant's employ.
It is true that witnesses are to be weighed and not counted, and so we cannot say — having nothing but the record before us — but that a jury would have been justified in accepting the testimony of plaintiff's four witnesses who did not hear rather than that of defendant's thirteen witnesses who did hear. We cannot know, however, how the verdict may have been affected by the testimony of the six witnesses called by plaintiff in rebuttal to show that the bell did not ring at a point some miles distant from the place of the accident when the engineer's testimony elicited by plaintiff compelled the *Page 382 inference that it was ringing at that point. The testimony of the engineer, on his cross-examination by plaintiff, to the effect that the bell was automatic, and was started at Rochester Junction, and not turned off until after the accident, necessarily gave the evidence afterward put in by plaintiff on rebuttal strong probative force with the jury. It is not unlikely that the jury in weighing the testimony as to the ringing of the bell at the crossing placed the testimony of the six witnesses in rebuttal alongside of that of the four witnesses who swore that the bell was not ringing at the crossing.
If defendant upon this trial had called the engineer to testify that the bell was automatic, and was started at Rochester Junction and continued to ring until after the accident — plaintiff would have had the right, undoubtedly, of contradicting this testimony by calling witnesses to testify that at an intermediate point the bell was not in fact ringing. But defendant did nothing of the kind. So the question is presented whether plaintiff could make defendant's witness his witness in certain respects, and then call witnesses to contradict him.
It is true that the evidence was not brought out by plaintiff on oral cross-examination of defendant's witness, but we are agreed that the situation is the same and that this question is to be treated precisely as if it was so brought out. The engineer was not in fact on the witness stand. There had been a previous trial, and by agreement counsel read such portions of the testimony given on the previous trial as he desired to offer on this one. On such prior trial defendant had elicited from the engineer the statement that he had set the automatic bell ringing at Rochester Junction, and that it continued ringing until the accident. This enabled plaintiff to produce several witnesses who testified that at certain points between Rochester Junction and the place of the accident the bell did not ring.
On this trial defendant deemed it wise not to give plaintiff an opportunity to introduce that evidence. Plaintiff tendered *Page 383 the issue that the whistle was not blown nor the bell rung as the train approached the crossing, and called, as we have said, four witnesses to testify to that effect. Defendant attempted to meet just that issue, and the thirteen witnesses called by it testified that the bell was rung. Defendant's counsel read so much of the engineer's testimony as was to the effect that the whistle was blown and the bell rung as the train approached the crossing, and passed. Whether the bell was rung at Rochester Junction and intermediate points was not relevant to the issue. The question was whether defendant had given notice of the approach of the train at this crossing, not whether it had been given at some other crossing. Plaintiff's evidence offered to make out his case was properly and necessarily confined to that issue. Defendant had the right to confine its evidence to that issue, and did. Perhaps its purpose was to avoid falling into a trap of which it had fair warning, but its motive was of no consequence to the trial court, whose duty it was to preserve its rights. It was defendant's right to refuse to examine its witness upon a collateral issue, or to permit plaintiff to draw out such testimony except under the well-understood penalty in such cases, namely, that of treating the witness as the witness of the party examining as to new matter.
Defendant apprised plaintiff of its position by objecting to the reading of such testimony. And when in rebuttal plaintiff called his six witnesses to testify that the bell was not ringing as the train passed them, defendant objected to that testimony contradicting a statement of defendant's engineer upon an irrelevant issue — a statement elicited by plaintiff to make available the testimony of the six witnesses gathered from a distant point.
The testimony was not relevant to the issue because there was no foundation for it save in the implication from the testimony of the engineer, whom plaintiff sought to impeach by the rebuttal evidence.
Certainly plaintiff could not swear six witnesses to prove that the testimony of the engineer was either false or incredible, *Page 384 and at the same time justify the evidence as relevant upon the ground of the absolute verity of the inference from the engineer's testimony, namely, that no change was made in the operation of the bell between Rochester Junction and the place of the accident. This was error for which the judgment should be reversed.
We are also of the opinion that the court erred in admitting in evidence the photograph of deceased. The action was to recover for pecuniary injuries resulting from decedent's death. (Code Civil Pro. § 1904.) Such injuries are to be compensated for on the basis of the monetary value of the services of deceased to her husband and children. Into such a case the personal element does not enter, for the law does not compensate for grief or sorrow, but only for the actual pecuniary loss. The introduction in evidence of the photograph of a handsome woman could not be expected to accomplish any other result than to introduce the personal element for the consideration of the jury. Certainly the language employed in Lipp v. Otis Brothers Co. (161 N.Y. 559,564) would seem to be applicable to the introduction of this photograph: "Clearly, the testimony we have been considering could not render any service in the case other than to awaken the sympathies, and thus influence the judgment of the jurors in the direction of a greater award, nor is it reasonable to assume that any other result was expected from it." In that case this court reversed a judgment obtained by a father, as sole next of kin, for pecuniary injuries resulting from his son's death. No one except the father was entitled to recover, and yet plaintiff was permitted to question a brother of deceased as to brothers, sisters, nephews and nieces of deceased, and their necessities — testimony which pointed out opportunities plaintiff would have for making charitable use of any moneys left after satisfying his own necessities. The reason for the decision in that case calls for a decision in this that evidence of such a character should not be received in cases where the personal element is not permitted by the statute to enter, as in this case. *Page 385
The judgment should be reversed and a new trial granted, with costs to abide the event.