On Petition for Rehearing.
Birdzell, J.In their petition for rehearing counsel for appellants urge upon the attention of the court some of the assignments of error, which they refer to as having been inadvertently overlooked in the original opinion. These assignments were not overlooked; it was thought that they were not of sufficient merit to warrant discussion. In the petition, chief reliance seems to be placed upon the alleged error committed in sustaining objections to certain questions asked of witnesses Doyon and McLean for the evident purpose of laying foundations for direct impeachment by proof of contradictory statements made by them as witnesses in the trial of the Rebillard case growing out of the same accident, and in the rejection of a certain offer of proof. The wdtness Doyon, in response to a question asking whether in the daytime there would be any possibility of his mistaking that old trail, answered, “I don’t know,” and, in response to a question asking whether or not, using ordinary gas lights, he would immediately see the difference between the old trail and the other road (referring to the road leading to the southeast and connecting with Fourteenth street), he said, “I don’t know as I wnuld.” At that point he was reminded of his testimony given in the Rebillard case, wherein, in response to the question as to there being any possibility of mistaking the road in the daylight, he had answered, “There might not,” and in answer to the question *400asked with reference to his ability to distinguish between the old trail .and the other road in the nighttime with ordinary gas lights, he had answered: “Well, I think possibly I would; but still at that time of the year they look very similar. I did not realize I had gone off to any different part of the road.” When asked whether or not he had testified as last stated, he gave the following answer, which went in without objection: “I do not remember. If that is the record, I will •concede that I testified that way.”
He testified further as follows:
Q. You don’t know ?
A. I know I testified, but I don’t know what I testified to.
Q. I asked you to look at the record and refresh your memory.
(Mr. Cowan) That is objected to as an improper method of refreshing his memory.
The Court: Sustained.
Q. You admitted, Mr. Doyon, did you not, during the trial of the Kebillard case, that there might not be any possibility of your mistaking the road and taking this old trail in the daytime ?
(Mr. Cowan) That is objected to as hearsay, incompetent, not a proper impeaching question, and no foundation laid, and calling for a conclusion of the witness.
The Court: Sustained.
Q. You testified, did you not, at the time of the Kebillard trial, to the following: That if you had ordinary gas lights that you thought it possible that you would have known the difference between the old trail and the other road ?
(Mr. Cowan) That is objected to on the grounds urged in the last objection.
The Court: Sustained.
It is very apparent that the foregoing rulings of the trial court were in no way prejudicial. Not only did the witness admit that, if the record in the Kebillard case was as stated to him by counsel, it was no doubt correct, and that he would concede that he testified that way, but a comparison of the testimony given upon cross-examination in this ease, prior to the asking of the impeaching questions, with the testimony quoted by counsel from the transcript in the Kebillard case, discloses *401that there is no substantial conflict, but merely a difference in phraseology. It may be true that the answers upon the points covered by the foregoing questions are slightly stronger in this ease than those given in the Bebillard case. But, however this may be, Doyon admitted the correctness of the transcript in the Bebillard case, and the jury had the benefit of any inconsistency so disclosed.
In the cross-examination of the witness McLean, he was asked the following question:
Q. Wasn’t the road you were looking for to get into town the road turning off at the section line and connecting with Fourteenth street?
A. I don’t know as to that.
Q. I call your attention, Mr. McLean, and ask you if it is not a fact that, on the trial of the Bebillard case in the United States district court in December, 1913, at Devils Lake, the following questions were asked you by a juryman, to which you gave the following answers ?
. “Q. Were you looking for that road leading off from the section line toward Fourteenth street ?
“A. That was the road I was looking for.”
(Mr. Cowan) That is objected to as incompetent, irrelevant, and not a proper impeaching question, and not binding on the plaintiff in this case.
The Court: Sustained.
Later on, an offer of proof was made, the rejection of which is also assigned as error. The offer was made in the absence of the jury and pertains to the probability as to whether or not McLean would have directed Doyon to take the road leading to the 'southeast and connecting with Fourteenth street, if he had seen it. The proof offered was a portion of the transcript in the Bebillard case, embracing the above question and answer, which counsel asked leave to verify by submission to the witness McLean.
With respect to the impeaching question put to McLean while on the witness stand, it need only be observed that the answer with which the former statement was inconsistent was elicited on the cross-examination, and pertained to a subject not covered in the examination in chief. If the fact is as testified to in the former case, it has no bearing upon *402the liability of the defendant to the plaintiff, and the examination went solely to the credibility of the witness. The record discloses that ample latitude for cross-examination generally was allowed; and, even though it might have been technically proper to have permitted an answer to the impeaching question, it was not reversible error to sustain an objection to it.
The avowed object of the offer of proof was to establish the probability that McLean would have given Doyon a direction to take the southeast road, had he seen it; but the evidence tendered was clearly hearsay as to this fact, and, in the view that we take of the case, the fact itself, if one’s contingent determination of conduct may be called a fact, is inadmissible. Under the principles of our original opinion, the defendant is not absolved from liability to this plaintiff by reason of the failure of McLean to detect or take the safe road. But it is altogether likely that the evidence was offered for the purpose of impeachment, for which purpose alone it was competent. In making the offer, however, the evidence being inadmissible generally, it should have been stated that it was offered for the specific purpose of impeachment. The court and the plaintiff’s attorneys might well have been misled, — indeed the objection to the offer of proof does not cover its inadmissibility for purposes of impeachment. Even assuming that error was committed in sustaining the objection to the offer of proof, since it goes only to the question of the credibility of the witness McLean, we do not deem the error, if any, of sufficient consequence to warrant a reversal of the judgment.
Again, after testifying rather inconclusively as to the point of time at which the witness had given Doyon the direction or command to steer back onto the road, with reference to his observation of the large rock which appeared ahead of the car, he was asked the following question:
“Q. Did you testify at the trial of the Bebillard case in the United States district court at Devils Lake, in December, 1913, that it was when you saw the rock that you shouted to Mr. Doyon to turn to the left?” — which question was objected to as being an improper impeaching question, and the objection sustained.
A little later impeaching questions, covering the same ground and referring specifically to the testimony given by McLean in the Bebil*403lard case, were asked him, in response to which he testified that he presumed that it was a fact that the questions and answers quoted from the transcript were given; but he further testified that it seemed to him that he had given Doyon the command before he had seen the rock; so the jury had the full benefit of such impeachment of the witness upon this point as was afforded by the testimony in the Eebillard case.
Appellants also argue that the refusal of the trial court to permit an inspection of the premises by the jury amounts to a prejudicial error. This is a matter which is largely within the discretion of the trial court. Considering the length of time that had elapsed between the happening of the accident and the time of the trial, the season of the year, and the changes that might have taken place in the general appearance of the premises during this period, together with the facilities for presenting the facts to the minds of the jurors, there is no merit in the contention that the trial court abused its discretion.
The petition for rehearing also urges misdirection of the jury as a ground for reversal. Appellants extract the following portion of the instruction:
“The defendant railway company was bound to use reasonable care in the construction and maintenance of its cut in a reasonably safe condition for travel upon the road which it crossed; and if it failed to do so, and constructed and maintained this cut in an unsuitable and unsafe condition, it is liable for injuries sustained in consequence of such failure.”
The objection made to the foregoing instruction makes no allowance whatever for the intelligence of the jury. It is said that it tells the jury in substance that it was the duty of the railroad company to maintain the cut so that it could be traversed over on the old trail. A careful reading of the entire instruction, or even of the part complained of, leaves no doubt in our minds that the jury could not have derived the impression that defendants were to be held liable in damages for causing the death of the plaintiff, because of their failure to construct a bridge over the cut, or to provide some other means of crossing the right of way at the point in question.
The petition for rehearing is denied.
*377Note. — The great weight of authority is in accord with the case of Chambers v. Minneapolis, St. P. & S. Ste. M. R. Co. in holding that the negligence of the driver of an automobile is not imputable to a guest or passenger riding in the machine-who has no authority or control over the machine or the driver, as will he seen by an examination of the notes in L.R.A.1915B, 953, and L.E.A.1917A, 543, on-imputed or contributory negligence of passenger riding in automobile driven by another precluding recovery against third person for injury.
*378Generally, as to imputed negligence of driver of vehicle to passenger, see notes in 8 L.R.A.(N.S.) 597 and L.R.A.1915A, 761.
As to whether negligence of driver of. a vehicle can be imputed to a passenger or guest riding therein, see notes in 101 Am. St. Rep. 842 and 57 Am. Rep. 483.
On duty of operator of automobile as to lights, see note in 38 L.R.A. (N.S.) 489.
On liability for operating automobile on highway without a license, see notes in 23 L.R.A.(N.S.) 561; 25 L.R.A.(N.S.) 734; 35 L.R.A.(N.S.) 699; 41 L.R.A. (N.S.) 308; 52 L.R.A.(N.S.) 801; L.R.A.1915D, 628; and L.R.A.1916E, 1225.
Generally on the question as to defects in highway as proximate cause of injury, See notes in 13 L.R.A. (N.S.) 1252 and 20 L.R.A. (N.S.) 737.
As to method of authenticating mortality tables, see note in 17 L.R.A. (N.S.) 1138.