{dissenting). The plaintiff’s intestate and a boy drove in a cart, drawn by a colt, to the residence of a relative of the intestate upon Champlain street, in the city of Detroit. They led a horse behind the cart. *105Champlain street was 10 feet and 1 inch wide between the curb and the street railway. Mr. McClellan, the deceased, was called by the boy (who sat- in the cart), and ran from the house, where he had called, into the street, to assist the lad to manage the horses, which were restive from the approach of the street car. 'While thus engaged he was struck and injured by defendant’s car, and he subsequently died. From a verdict and judgment for the plaintiff, the defendant has appealed.
Charles Therwachter, a witness for the plaintiff, was asked upon rebuttal about a conversation with Fuller, defendant’s conductor upon the car in question. He testified as follows:
“Q. Do you remember having a conversation with Mr. Fuller on his car, after the accident, regarding it?
“A. Yes, sir. (Objected to as incompetent and immaterial. Objection overruled. Exception for defendant.)
“A. He said, if he had had his own motorman on the car at the time of the accident, the accident would not have happened.”
This testimony was not only hearsay, but the expression of an opinion; but it is said to be admissible by way of impeachment. Fuller had testified on behalf of the defendant in relation to the accident. He had not been asked to give an opinion about the cause of the accident or the negligence of any one. He simply detailed what he professed to have seen and known. He had not stated that the accident could or could not have been averted had his regular motorman been with him. None of these things would have been competent. Impeachment may consist of showing that a witness has made contrary statements out of court from those made in court upon a subject relevant to the issue. Such statements, when declarations of one not a party to the record, cannot be received as substantive evidence to prove a material fact, for they are hearsay. Dunn v. Dunn, 11 Mich. 284; Fisher v. Hood, 14 Id. 189; Howard v. Patrick, 43 Id. 121; Hamilton v. People, 46 Id. *106186; Driscoll v. People, 47 Id. 413; McDonald v. McDonald, 67 Id. 122. But they are received to prove the witness untruthful; to nullify the evidence given, by enabling the jury to say that they believe the witness to be untruthful, and will not credit his testimony. Howard v. Patrick, 38 Mich. 795; Brown v. Dean, 52 Id. 267; Callin v. Railroad Co., 66 Id. 358; Tisman v. School-District, 90 Id. 510. This was unwarranted in this case, for the statement made out of court was not at variance with any statement of fact made in court. It may be said that the testimony of this witness tended to sustain the •defendant’s contention, and this testimony was admissible because it tended to' show that he had admitted •defendant’s, negligence, out of court, which his testimony tended to disprove; but it would never do to permit the discrediting of a party’s testimony by showing that the witness giving it had formed and expressed opinions upon the circumstances which he had related. His •opinion as such was not material; so it cannot be said that his denial of the talk with Therwachter could be contradicted. To permit this would be to say, in substance, that the witness’ opinion, .though erroneous, might be taken by the jury as discrediting a truthful and exact statement of fact upon which it might be based. 2 Phil. Ev. 972; Elton v. Larkins, 5 Car. & P. 385; Holmes v. Anderson, 18 Barb. 420. That would be to set up a man of straw, that he might be knocked down. The case differs from that of Beaubien v. Cicotte, 12 Mich. 487, where a witness who had testified to the competency of a testator was discredited by showing that he had said to another witness that the will could be broken, for it was not worth a snap of his fingers. It also differs from that of Patchin v. Insurance Co., 13 N. Y. 268, where a witness called to prove that a vessel was •seaworthy was discredited by showing that in a conversation he had expressed the opinion, that she was not seaworthy. In both of these cases it was competeht to introduce the opinions of witnesses, for such *107opinions were material. Here the conductor’s opinion was not material, and does not appear to have been asked or given upon direct examination. Impeachment is not favored, being open to serious abuse, and the rule stated in Beaubien v. Cicotte should not be extended to this case, but we should apply the general rule that impeaching testimony must be limited to material matters. The effect of this testimony was doubtless injurious. It was proving that an employé of the defendant, in charge of the car, recognized the fact that the accident might have been avoided, and would have been, had not defendant’s car been managed by a substitute, instead of a regular, motorman.
It is unnecessary to discuss the questions of negligence and contributory negligence, as the case might present new or different features upon another trial.
For the error pointed out the judgment should be reversed, and a new trial granted.
Grant, J., concurred with Hooker, J.