dissenting.
Being unable to concur in the judgment rendered by a • májority of the court, I will undertake to state the reasons for my dissent.
1. It will be observed that the Chief Justice agrees with me that, upon the merits of the case, tested by the evidence actually introduced in behalf of the plaintiff, it would have been proper to grant a nonsuit. It is perfectly clear from the evidence that the plaintiff knew of the defects in the engine from which his injuries resulted, and I think it equally clear that he knew, or ought to- have known, of the danger to which he was exposed by remaining at his post and discharging his duties upon that defective engine. The case, therefore, is, to my mind, plainly one in which the plaintiff deliberately and voluntarily assumed the risks of the situation; and this being so, he was not entitled to a verdict upon the evidence as it stood when the motion for a nonsuit was made.
2. In his examination as a witness in his own behalf, the plaintiff testified that he heard Burton, the master mechanic of the company, tell Crowley, the foreman of its machine shops, to take the engine in and repair it; and that he (the plaintiff) expected every day it would be taken in and repaired. He further swore, positively and unequivocally, that the “promise” to repair (evidently alluding to the instructions which Burton had given to Crowley in the plaintiff’s presence) did not induce him to stay on the engine — that he stayed to make a living, and that what Burton told Crowley had nothing to do with Ids staying there. In the amendment offered to the declaration, it was alleged that Burton instructed Crowley to have the engine repaired; that Crowley thereupon said he would, at the -earliest moment, repair the defect; and that the plaintiff, • “believing and- relying upon the promise and assurance of Burton that the defect would be repaired, remained upon the engine until September 30, when he was thrown there*664from by reason of its defective condition, sustaining the-injuries complained of”; and further, that “had he known of the dangerous condition caused by said defects, he would, on account of said promise and assurance of Burton and Crowley that the defect would be repaired, have remained on the engine in the capacity aforesaid. From the time of said promise and assurance to the date of the injury, he, of right, could and did believe that defendant would have the engine repaired; but defendant disregarded said promise and assurance, and did not repair the engine, but allowed it to remain so defective.”
The amendment was allowed, and the plaintiff was then offered as a witness to testify “to the facts alleged in this amendment” — which, of course, would embrace all the-allegations above set out. The court excluded the testimony thus offered, on the ground that it would be improper to allow the plaintiff to testify further on these points, but stated that testimony of this character coming-from any other source would be received.
The conflict between the plaintiff’s statements while a. witness on the stand, and some of the allegations contained in his amendment, is plain and palpable-; and this conflict, relates to a matter as to which he could not have been mistaken. He said, in the first instance, that he did not remain on the engine because of any promise to repair it, and that what Burton told Crowley had nothing to do with Ms staying there. He alleged in his amendment that he did remain because of such promise, relying upon the assurances-of Burton and Crowley that the defect would be repaired. It must be borne in mind that, in offering to testify to the allegations of the amendment, the plaintiff did not represent, or even pretend, that his recollection as to these matters was at fault when he was testifying about them on the-stand. The spectacle therefore presented to- my mind is. simply this: the plaintiff perceived, from the discussion which was evidently had upon the motion to nonsuit, that *665he had practically sworn his case out of court, and then wished to change its character and get a hearing before the jury by varying his testimony in vitally important particulars. I cannot, of course, say with absolute certainty that he deliberately intended to commit the crime of perjury; but it is evident from the record that the trial judge was of the opinion that the plaintiff contemplated putting himself in the attitude of swearing falsely in order to save a failing cause. The refusal to allow him to again take the stand for the purpose indicated could have been based upon no other reason. The presiding judge manifestly acted under the feeling that at least a semblance of common honesty and fair dealing should be observed in the trial of the case, and that the cause of justice should not be prostituted in her courts; and consequently he very naturally was unwilling to permit such an exhibition as that outlined above.
For my part, I am willing to leave a matter of this kind to the sound discretion of the tidal judge. Being upon the scene, and conversant with all the minor details, and circumstances surrounding the particular case with which he has to deal, he is much better enabled to pass fairly and intelligently upon the question thus presented than would a reviewing court, having before it merely a meagre narrative in writing of the more pregnant facts, necessarily more or less incomplete and imperfect. In the present instance, the plaintiff had been fully examined upon the identical points as to which he asked leave to again testify. In asking to be allowed to take the stand a second time, he did not undertake to assert that he was mistaken as to any fact previously testified to by him, or had been misunderstood in regard thereto, and therefore desired an opportunity to correct statements unwittingly made by him; nor did he attempt to offer any explanation tending to show that he had any right to be re-examined as a witness as to the matters alleged in his amendment, or that the ends of justice would thereby *666be subserved. On the contrary, his offer was purely a naked one to swear to the truth of the allegations introduced by his amendment — an offer which, if canned into effect, would necessitate his impeaching his previous testimony upon vitally material points, and bring upon himself the infamy of willful perjury. I am by no means sure that there is no restriction whatever upon the privilege of testifying in one’s own behalf, or that a party can, as matter of strict right, insist upon being allowed to testify more than once during the same trial; and where a party, after having been fully examined as a witness, makes an offer which the trial judge has ample reason to regard as one involving the commission of perjury if the party is allowed to again take the stand and cany out his undertaking, it is clear to my mind that the judge’s refusal to give countenance to- such a disgraceful and perfidious performance can involve no abuse of discretion, nor properly be regarded as otherwise than eminently right and undeniably just. I cannot give my sanction to a judgment which overrules the trial judge in pursuing exactly such a course in the case now under consideration.
I do not think the cases cited by Mr. Justice-Atkinson— which unquestionably strongly sustain and fortify the position that a trial judge ought, as a general rule, to reopen a case and receive evidence for the purpose of saving a non-suit — apply to a case like the one in hand, involving the reintroduction of the same witness, already fully heard— not for the purpose of correcting or elucidating his testimony as given in the first instance, but with a view to contradicting and impeaching himself by giving an entirely different version as to facts concerning which he had positive knowledge, and about which he could not possibly have been mistaken when testifying at the outset. In my judgment, this case stands upon its own peculiar facts, in view of which I adhere to the proposition that this court ought not to compel a trial judge, even though he has allowed an *667amendment to a declaration, to permit the enactment of snch a travesty of justice as was proposed in the instance now under consideration.
One other view of the matter strengthens my conclusion that the judgment ought to be affirmed. This court is asked to review the ruling complained of, in order to ascertain whether or not the plaintiff was thereby deprived of any substantial right, and was really injured by it. It is perfectly obvious that, in order to save his case, it was incumbent upon him to prove all the material allegations of his amendment. He could not, under the circumstances, even hope to successfully prove them by his own testimony without committing perjury. This being so, it is entirely immaterial whether he was, or was not, ready to perjure himself, and would have done so if permitted. If he did so intend, certainly the judgment ought not to be reversed. If he did not so intend, his testimony would have been utterly ineffectual to save his case, and refusing to allow him to again take the stand in no wise operated to his injury, and therefore presents no cause for reversing the judgment of the court below.