dissenting.
It appears from the record before us that as the heirs of Henry F. Failing, deceased, Henrietta E. Failing, Mary F. Failing and Emily F. Carbell own at the southeast corner of the intersection of Fifth and Alder *15Streets, Portland, Oregon, a tract of land which borders 100 feet on each of those streets. A contract had been entered into whereby the Hurley-Mason Company, at the time of the injury complained of, was erecting on the premises a large building which had been leased to, and when completed was to be occupied by, the I. Gevurtz & Son. Subject to a compliance with the ordinances of that city, permission had been granted the Failing estate to place material in front of the building to a line eight feet north of the curb on Alder Street, and on the west to a line eight feet in the clear from the car-track on Fifth Street, reserving, however, a gutter space of two feet between the curb line and any material that might be placed in the streets. In executing its contract the Hurley-Mason Company put up temporary canopies over the sidewalks, extending from the curb lines of the streets to the building, to protect pedestrians from injury by falling material. The contract to construct and put up the necessary fire-escapes was sublet to the Portland Wire & Iron Works. This corporation, on the day prior to the accident, sent two iron latticed plat-' forms, each 12 feet long and 3 feet, 6 inches wide, by a drayman, who delivered them on Fifth Street, within the space limited by the building permit, placing the long edges on the pavement, the upper edges inclining toward and resting against a quantity of hollow tiles, piled near the southwest corner of the building. The south end of the platforms, however, projected about two feet beyond the tiles against which they leaned. The next day the plaintiff walking north on the east side of Fifth Street, observing the canopy referred to, and, disliking to pass under it, stepped into the street to go around the obstacles piled up and left therein. As he did so an *16acquaintance met Mm, and they engaged in a conversation, standing near the iron platforms. In the meantime an ice-wagon drawn by two horses which were driven by a servant of S. A. Olsen was halted just south of the building mentioned to deliver ice. Having performed that service, the driver backed his horses and turned their heads to the west, and in doing so the end of the wagon tongue struck the extended ends of the platforms, causing them to fall upon the plaintiff’s left leg, producing a Pott’s fracture, which constitutes the injury complained of herein.
At the trial E. H. Bliss, the superintendent of the Portland Wire & Iron Works, testified on direct examination that, having been notified of the accident, he went to the building where it occurred and made some measurements, concluding his answer to an inquiry by saying: “But of course the platforms had been removed.” On cross-examination the plaintiff’s counsel, referring to such visit to the premises, inquired: “You went over the day of the injury?” and the witness replied, “Yes, sir; a short time after the accident. Q. Where was the iron then?” An objection to this inquiry having been sustained, the witness was asked: “Did you see the iron any place? A. I did.” After this reply was given the appellant’s counsel objected to the inquiry, whereupon the court said:
‘ ‘ That is immaterial where it was after the accident.
“Q. You noticed this pile of tile that was there, didn’t you?
“A. I did.
“Q. Do you know about what the width of the tile was?.
“A. Do you mean each individual tile?
“Q. No, sir; the pile of tile.
*17“A. I understood it was piled a couple of feet to the curb line from where the tile was piled up.
“ Q. It was not immediately against the curb I
“A. No, sir; it is demanded you leave a gutter space.
“Q. What was that gutter space?
“A. I could not say definitely. It was a small space between a foot and two feet, or something of that sort. ’ ’
Plaintiff’s counsel then observed:
“Now, your honor, I want to show that that iron could have been piled in there between that pile and these posts.
“The Court: What is the question?
“Plaintiff’s Counsel: I want to ask if it was piled tti6r6
“The Court: All right.
“Appellant’s Counsel: I object.
“The Court: He may answer the question.
“Appellant’s Counsel: I save an exception.
“Q. You saw the iron there that afternoon when you got there?
“A. After the accident?
“Q. Yes.
“A. Yes.
“Q. I want to , ask you if it was not piled between the gutter and the tile?
“A. It was.
“Appellant’s Counsel: If the court please, these questions all go in under the objection.
“The Court: Yes, sir. Save your exception.
‘ ‘ Q. Both pieces of iron had been moved, and it was piled between the tile and the upright posts on the edge of the sidewalk?
“A. It was piled in the gutter.”
• It is contended by appellant’s counsel that in requiring this witness, over objection and exception, to testify that after the injury occurred'the platforms were moved to another place, an error was committed. It is maintained by plaintiff’s counsel, however, that, the *18witness having testified on direct examination that the platforms had been removed after the accident happened, it was within the limits of proper cross-examination to require him to state where they had been temporarily placed, until they could be raised to their proper position and fastened to the outside of the building. The direct examination referred to was based upon a remark made by E. H. Bliss in response to the declaration of appellant’s counsel, to state what were the conditions with respect to the delivery of the fire-escape platforms at the Failing building. After complying with that request the witness incidentally observed: “But of course the platforms had been removed.” This comment was probably offered as an excuse for not making a more careful measurement of the situation existing soon after the injury. The remark of the witness was not in compliance with the request for a detailed statement of the conditions existing at the building at the time of the accident, and the observation was evidently not anticipated by appellant’s counsel.
1. The statute permits an adverse party to cross-examine a witness as to any matter stated in his direct examination or connected therewith: Section 860, L. O. L. The extent or limit of the cross-examination of a witness, as a means of testing his memory, or of discovering his bias or prejudice, or of ascertaining the truth of his sworn declarations, is a matter resting largely in the court’s discretion which will not’ be disturbed except in case of an abuse thereof: Sayres v. Allen, 25 Or. 211 (35 Pac. 254); State v. Reinhart, 26 Or. 466 (38 Pac. 822); State v. Trapp, 56 Or. 588 (109 Pac. 1094).
2. Any narration by a witness tending to explain, modify, discredit or disprove his testimony given in *19chief may he demanded of him on cross-examination: Ah Doon v. Smith, 25 Or. 89 (34 Pac. 1093); Maxwell v. Bolles, 28 Or. 1 (41 Pac. 661); Kenny v. Walker, 29 Or. 41 (44 Pac. 501); Oregon Pottery Co. v. Kern, 30 Or. 328 (47 Pac. 917); Lieuallen v. Mosgrove, 37 Or. 446 (61 Pac. 1022).
3, 4. Where, however, the proposed cross-examination of a witness relates to collateral, irrelevant or immaterial matters, the privilege should be denied: 40 Cyc.. 2493.
“It is now settled by the great weight of authority as well as reason that evidence of subsequent repairs or precautions taken after the happening of the accident causing the injury,” says a noted author, “is not admissible to prove antecedent negligence”: 6 Thomp. Com. Law of Neg., par. 7871.
To the same effect, see Skottowe v. Oregon S. L. etc. Ry. Co., 22 Or. 430 (30 Pac. 222,16 L. R. A. 593); Ferrari v. Beaver Hill Coal Co., 54 Or. 210 (94 Pac. 181, 95 Pac. 498, 102 Pac. 175, 1016); Marien v. M. J. Walsh & Co., 64 Or. 583 (131 Pac. 505). Where it appears that after an accident a change has been made in the instrumentality causing it, evidence of the alteration is inadmissible, unless it is offered to substantiate an issue that the agency causing the hurt could not have been operated in a changed condition: Love v. Chambers Lumber Co., 64 Or. 129 (129 Pac. 492).
5. Though the remark of the witness Bliss was immaterial, the declaration of plaintiff’s counsel that he desired to show that the platforms could have been placed in the gutter tends to disclose a purpose to prove prior negligence, thus seeking to impose upon the appellant a liability for knowledge gained by experience, and, this being so, an error was committed in requiring the witness to answer the question on *20cross-examination relating to a change of place of storing the ironwork causing the injury.
6. Notwithstanding such error, a careful examination of the entire testimony given at the trial, and which is made a part of the bill of exceptions, induces the conclusion that we cannot affirmatively say there is no evidence to support the verdict, and under the procedure prescribed by Article YII of Section 3 of the Constitution of Oregon, and amended November 8, 1910, the misapprehension of the rule of law must be regarded as harmless.
7, 8. It is insisted that an error was committed in failing to submit to the jury, as requested, the question of the plaintiff’s negligence in halting in the street to converse with an acquaintance when an opportunity was afforded him to observe the danger reasonably to have been apprehended from the falling of the platforms. The answer does not charge contributory negligence. It contains an averment as follows:
“That the plaintiff is of full age and with ordinary powers and faculties of observation, and assumed whatever risk arose from the placing of materials in the street and voluntarily exposed himself to the same. ’ ’
A text-writer, illustrating the divergence of these defenses, says:
“The doctrine of the assumption of risk, as distinguished from contributory negligence — that is to say, from the failure of the person injured, or the custodian of such person, to exercise ordinary care to avoid the injury, is said not to apply in the case of persons not sustaining the relation of master and servant to each other, and not having contractual relations with each other, unless the person injured knows and appreciates the danger and voluntarily puts himself in the way of it”: 1 Thomp. Com. Law Neg., par. 184.
*21The text thus quoted seems to have formed the basis of the clause of the answer referred to, except that it is not averred in this part of the defense that the plaintiff knew and appreciated the danger. But, however this may be, as no contractual relation existed at the time of the accident between the parties now before this court, the defense of assumption of risk was inapplicable, for such a plea can be invoked only in cases between master and servant: Dubiver v. City Railway Co., 44 Or. 227 (74 Pac. 915, 75 Pac. 693, 1 Ann. Cas. 889). No error was committed in refusing to give the instruction requested.
9. It is contended that an error was committed in dismissing the action as to the defendant Olsen. In the brief of appellant’s counsel it is said:
“No question can be made but that there was evidence before the jury upon which they might have •found that .the negligence causing the accident was attributable (a) to the defendant Olsen and the appellant concurrently, or (b) to the defendant Olsen alone. In the former case there would have been judgment against both parties, and appellant is defeated of its right of contribution from Olsen by the dismissal.”
Judge Thompson in his great work, Oomméntaries on the Law of Negligence, paragraph 75, in discussing this subject, says:
“If the concurrent negligence of two persons, combined together, results in an injury to a third person, he may recover damages of either or both, and neither can interpose the defense that the prior concurrent negligence of the other contributed to the injury.”
As this cause might originally have been maintained against either Olsen or the Portland Wire & Iron Works, so the plaintiff at any time prior to the giving of the judgment could lawfully dismiss the action as to either and proceed against the other: Groot v. *22Oregon Short Line R. Co., 34 Utah, 152, 164 (96 Pac. 1019,1024). In that case it is said:
“The plaintiffs, therefore, conld sue any one or more of the joint tort-feasors, if there were, in fact, more than one. The plaintiffs could likewise, at any time before judgment, have dismissed the action as to one, and have proceeded against the other alone. The court could also dismiss the action, with the consent of the plaintiffs, as to one tort-feasor, and we know of no reason why the other can complain. Where any other rule is invoked, it applies only after judgment. A plaintiff need not prosecute all joint tort-feasors; and, as a general rule, so long as he does not release or discharge any one without the consent of the other, neither can complain.”
So, too, in Equitable Life Assur. Society v. Lester (Tex. Civ. App.), 110 S. W. 499, 501, it was ruled that in an action against joint tort-feasors, a dismissal as to one did not discharge nor affect the liability of the other. In deciding that case Mr. Chief Justice James, speaking for the court, says:
“The tort alleged was a joint one, and the discontinuance or dismissal as to Marks & Plummer, or an instructed verdict in their favor at plaintiff’s instance and request, did not serve to discharge appellant or affect its' liability. ’ ’
10. The wrong complained of in the case at bar was not intentionally committed by either Olsen or the appellant, and in the absence of a purpose of that kind, the right of contribution exists between them: 9 Cyc. 805. A text-writer discussing the question of contribution and indemnity as between wrongdoers, says:
“An attempt has been made in some cases to lay down a general rule by which it may be determined in every case whether the party is or is not entitled to contribution. Thus in Ohio, the judicial conclusion *23is that ‘the common-sense rule and the legal rule are the same, namely, that when parties think they are doing a legal and proper act, contribution will be had, but when the parties are conscious of doing wrong, courts will not interfere.’ This statement is a little inaccurate, in that it denies redress in the cases only in which parties are conscious of wrongdoing. There are many cases in which the absence of consciousness of wrong could not excuse a man either in law or morals. An English case states the rule more concisely as follows: ‘The rule that the wrongdoers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.’ If he knew the act was illegal, or if the circumstances were such as to render ignorance of the illegality inexcusable, then he will be left by the law where his wrongful action has placed him”: Cooley, Torts (3 ed.), 258.
The appellant is therefore not remediless, and may maintain an action against Olsen for contribution. No error was committed in dismissing the action as to the latter, when the judgment of nonsuit was given with the plaintiff’s consent and against the appellant’s protest.
Believing that no prejudicial error was committed at the trial, the judgment is affirmed. Affirmed.
Mr. Chief Justice McBride and Mr. Justice Ramsey concur.