delivered the opinion of the court, March 22d 1875.
It appears from the evidence, and it was conceded in the argument, that the only locomotive that could have fired the premises in question was that numbered 458, in charge of Alfred Carpenter, as engineer. It follows, therefore, that the condition of this engine and its management were all that were legitimately before the court. If it was properly constructed as to its furnace and smokestack, and was furnished with a spark-arresting grate of the proper character, the company would not be liable, though the building were burned by fire accidentally issuing, from it: Railroad Co. v. Doak, 2 P. F. Smith 379. If, then, this engine was in a proper condition, it mattered not that every other engine, owned by the company, was without the proper appliances for preventing the ejection of coals and sparks. On the other hand, if this engine was dangerous, in this respect, it was of no consequence that all others upon the road were safe. Such being the case, it is manifest that all evidence going to prove defects in engines belonging to this company, other than the one alleged to have produced the injury complained of, was irrelevant to the issue pending, and should have been excluded. It is alleged, however, that this evidence was relevant as tending to contradict certain general statements made in the testimony of Edward C. Beirne, the defendant’s stack-inspector. But we find nothing whatever in that testimony, as certified to us by the judge below, which tends to support such an hypothesis. No allusion is made by Beirne to any engine but No. 458.
If, nevertheless, we consider that which we are not bound to consider, to wit: the testimony reported in the counter-statement, taken from the notes of the counsel for the defendant in error, we are still unable to pronounce the ruling as free from exception.
The witness, on cross-examination, stated, among other things, that he depended upon his book entries to refresh his memory; that he sometimes found broken grates, but none within three years. Now, as this answer was irrelevant to the issue trying, and as there was nothing in the examination-in-chief which could properly induce a cross-examination productive of it, the plaintiff, who drew it out, was bound by it, and ought not to have been permitted, under a pretence of contradicting it, to throw evidence into the case, which, whilst prejudicial to the defence, was foreign to the matter in controversy: Griffith v. Eshelman, 4 Watts 51.
The judgment is reversed, and a venire facias de novo awarded.