The court is of opinion that both of the exceptions taken to the rulings of the presiding judge upon questions of evidence arising in the course of the trial must be sustained.
1. The evidence of the plaintiff’s statements in conversation with Wales should have been admitted, as bearing upon the question whether the plaintiff was fraudulently making a claim against the town, which he knew to be unfounded.
2. The second question is of. more general importance. The surveyor of highways for the district, being called by the plaintiff as a witness, on cross-examination described the condition of the highway at the place in question, and testified that'he considered it safe. The plaintiff then asked him whether he had not stated to the plaintiff’s brother that he (the witness) had informed the selectmen that the place was unsafe; and he answered that he had not. The plaintiff’s brother was after-wards allowed, against the objection of the defendant, to testify that the surveyor had so stated to him.
The St. of 1869, c. 425, which took effect before the trial, provides that the party producing a witness “ may contradict him by other evidence, and may also prove that he has made at other times statements inconsistent with his present testimony; but, before such last mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statements, and, if so, allowed to explain them.” This statute abrogates the rule of the common law, by which a party who had called a witness was deemed to have held him out as worthy of credit, and was therefore not allowed to prove by other witnesses statements previously made by him, inconsistent with his present testimony, which would not be admissible as independent evidence, and which could have no effect but to impair his credit with the jury. Adams v. Wheeler, 97 Mass. 67, and cases cited. It is taken, almost verbatim, from the English statute of 17 & 18 Vict, c. 125, § 22, omitting, however, the qualification of that act — “in case the witness shall in the opinion of the judge prove adverse ” — and the limit of the right to prove such inconsistent *531statements “ by leave of the judge ” only; but yet does not allow such statements to be proved, without giving the witness the full notice and opportunity to explain, to which a witness called by the opposite party is entitled by the practice of the courts of England, of the United States, and of New York, though not by that of our own. 2. Taylor on Ev. (4th ed.) §§ 1282, 1300. Conrad v. Griffey, 16 How. 38, 46, 47. Pendleton v. Empire Stone Dressing Co. 19 N. Y. 13. Gould v. Norfolk Lead Co. 9 Cush. 338.
So great a change in the rules of evidence, giving so extensive a power to a party to introduce proof in contradiction and disparagement of a witness put on the stand by himself, uncontrolled by the discretion of the judge before whom the trial is had, must be kept strictly within-the bounds of the statute, and certainly cannot be construed as enabling a party to contradict his own witness in any respect in which the law would not permit him to contradict a witness produced by the opposite party.
We are of opinion that the statute did not warrant the admission of the testimony objected to, for two reasons. First, the surveyor, whose testimony, was sought to be contradicted, had only been asked generally whether or not he had made such statements to the other witness ; and no “ circumstances of the supposed statement, sufficient to designate the particular occasion,” had been mentioned to him, as the statute expressly requires. Angus v. Smith, Mood. & Malk. 473. Crowley v. Page, 7 C. & P. 789. Conrad v. Griffey, and Pendleton v. Empire Stone Dressing Co., above cited. And, secondly, the testimony which was sought to be contradicted was to mere matter of opinion; would have been incompetent, if objected to; and, being irrelevant and immaterial, could not have been contradicted, if elicited on cross-examination from a witness called by the opposite party. Lincoln v. Barre, 5 Cush. 590. Brockett v. Bartholomew, 6 Met. 396. Elton v. Larkins, 5 C. & P. 385. Tennant v. Hamilton, 7 Cl. & Fin. 122; S. C. Macl. & Rob. 821.
3. The plaintiff’s failure to wear a truss, and his pressing or stamping upon a defective place in the highway with his foot, if *532proved, were not conclusive evidence of want of ordinary care on his part, but were matters for the consideration of the jury upon that issue, and were submitted to them under instructions sufficiently favorable to the defendants. -
4. In order to entitle the plaintiff to recover against the town, there must have been a defect in the highway, which had existed for more than twenty-four hours or of which the town had had reasonable notice, and that defect must have been the immediate cause of the injury. It is not enough that another defect in the highway, which was the cause of the defect which immediately caused the injury sued for, had existed for more than twenty-four hours or been known to the town. Or, to apply the principle to the state of facts which the plaintiff alleged to have existed in this case, it would not be sufficient that the culvert had been too narrow for more than twenty-four hours, and that its narrowness caused the water to overflow, and, by washing away or loosening the earth, produced such a state of the highway as would not support the plaintiff’s weight; but such a state of the highway, though resulting from the imperfect condition of the culvert, must itself have existed for the requisite time, in order to maintain the action. As a new trial must be had on account of the erroneous rulings on questions of evidence, we need not particularly consider whether the instructions given to the jury, justly interpreted, were in accordance with this rule.
Exceptions sustained.