A party cannot impeach his own witness. Hall v. Chicago, R. I. & P. R. Co. 84 Iowa, Moore v. Burlington, 49 Iowa, 136; Rowell 311; Gardner v. Connelly, 75 Iowa, 205; Hum-v. Williams, 29 Iowa, 210; Duffy v. Dubuque, ble v. Shoemaker, 70 Iowa, 223; Hunt v. Hoover, 34 Iowa, 77; 1 Greenl. Ev. § 442.

walk is defective when it is not in a reasonably safe condition for the use for which it is intended. . . It may be due to the presence of something which is a menace to the safety of the users of the way as well as to imperfect construction or the absence of needed labor or material." Bliven v. Sioux City, 85 Iowa, 351. The real question is, Is the defect complained of in the walk itself, or so near it as to endanger the persons of those properly using it? Rowell v. Williams, 29 Iowa, 210; Ross v. Davenport, 66 Iowa, 548; Duffy v. Dubuque, 62 Iowa, 172, 50 Am. Rep. 743; Pittenger v. Hamilton, 85 Wis. 356. It was, then, a question for the jury as to whether defendant was negligent, and as there was evidence tending to show such negligence, as well as evidence to the contrary, the finding of the jury in that respect should not be disturbed.

danger he must use such knowledge so as to from stepping over its side and falling into the avoid injury if possible. Such is no doubt the stream below. The duty imposed upon the law, but the facts of this case do not bring it town to keep its crossings in a reasonably within that rule. If the evidence to the effect safe condition for the use for which they were that there was no light at or near the exca- intended "extends, not merely to the survation is to be believed, then it is clear that, face of the street or walk, but to those things having no knowledge of the excavation, and within its control which endanger the safety no light by means of which she might see her of those using the street or walk properly. danger, and there being nothing to prevent her... In the statutory sense a street or sidestepping into the hole, and she being otherwise in the exercise of due care, she is not chargeable with negligence in not discovering and avoiding the excavation. Her knowledge that the town was laying water mains does not charge her with notice of this particular excavation. Even if she did know of the danger she would not be negligent in attempting to go over the crossing if she exercised due care in so doing. Hers was not a case of knowingly and consciously incurring danger, hence the cases relied upon are not applicable. Counsel also argue that the only duty the town owed to plaintiff was to keep its walks and crossings in a reasonably safe condition. He insists that if the crossing itself was in fact good and sufficient the town was not liable for an injury received by one when off of said crossing. The following cases are cited: O'Laughlin v. Dubuque, 42 Iowa, 541; Alline v. Le Mars, 71 Iowa, 654; Ely v. Des Moines, 86 Iowa, 55, 17 L. R. A. 124. These cases in their facts are all different from the one at bar. In the Dubuque Case the person was injured while crossing the street, not on a regular crossing, and it is said: "Sidewalks and crosswalks alone are constructed for foot travelers, and he who, without some good and sufficient reason, walks elsewhere and is in jured should not be permitted to complain that he has been injured through the fault and negligence of the city." In Alline's Case the injured party was able to see the limits of the walk, and voluntarily and without necessity therefor, stepped from the walk without know-lighted at the excavation on the evening of the ing she could safely do so. Ely's Case was one where the pedestrian on a city street unnecessarily left the street, went into an alley, and fell into an area way. None of the cases are controlling in the one under consideration. In this case the crossing was being made on the walk provided by the town, and owing to the darkness plaintiff inadvertently stepped off of the crossing into an unguarded, and, as some of the evidence shows, unlighted excavation, which came up to the very edge of the crossing. The jury must have found that plaintiff was not negligent, and we cannot disturb their finding in that respect.

3. The court told the jury in the seventh division of the charge, in substance, that if the defendant had caused a light, sufficient to apprise a person of ordinary prudence of the existence of the ditch, to be placed at or near it on the evening of the accident, and before it happened, then the defendant was not guilty of negligence unless it was shown that defendant had caused said light to be removed, or had actual notice or knowledge of said removal, and had sufficient time thereafter to replace the same. It is urged that the verdict is against this instruction and against the evidence. There was much evidence tending to establish the fact that a lamp or lamps were

accident, and before it happened. There was evidence also to the contrary. There was much evidence showing that when the accident occurred there was no light at or near the excavation. There was an undoubted conflict touching this matter, and it cannot be said that the finding of the jury was contrary to either the instruction or the evidence. Again, if the evidence had been undisputed that the light was burning when the accident occurred, still it would be a question for the jury, under the instruction, as to whether it was a sufficient light to apprise one of the danger.

4. Plaintiff called one Lemoin as a witness. and showed by him that he was mayor of the town at the time the accident happened: that the town was then engaged in laying mains for water; that the excavations were made by contractors for the town. Defendant after

2. Counsel for appellant insist that the evidence shows that the defendant was not negli gent. The argument is that as the defendant had a crossing which was, in and of itself, good, and inasmuch as it had a right to excavate for its water mains, and because the ex-wards called the same witness, and he testified in cavation formed no part of the crossing walk, chief that lamps were lighted at the excavation therefore it cannot be held liable for an injury on the night of the accident, and before it hapreceived to one who, in the exercise of due pened. On cross-examination be was asked if care, and unable by reason of the darkness to he did not, on the morning after the accident, discover the limits of the crossing walk, and and in the presence of plaintiff and Mrs. Safnot knowing of the excavation adjoining said ford, at the latter's house, in a conversation walk, steps into the same. On the same theory there, state that the town was negligent in a city might erect a bridge over a river and not having the lights lit, as they depended rect no guard rails to keep the pedestrians on the moon, but after this they would

"

have the lights lit." This was objected | then, it would seem, discharged. Afterwards to as "incompetent, and laying the ground for defendant called him as its witness, and asked impeachment of a witness whom they have him whether there were lights at the excavaused as their own witness, and for the further tion. On his cross-examination the plaintiff reason it is on something entirely imma- asked the questions heretofore set out. If, terial." The court said, "I do not understand when the witness was called by plaintiff, that a witness who is called by a party can- she had interrogated him regarding the lights, not be contradicted, and especially I think it and he had testified that the excavation was is competent to ask this witness this question lighted, and plaintiff had then sought to show in view of the testimony he has given. The by him that he was mistaken, and, failing so defendant excepted to the ruling, and the wit- to do, had, in rebuttal, put witnesses on the ness answered, "I made no such statement." stand to show that he had made contrary stateTo another question propounded to this wit- ments, we should have a case within the genness touching a similar conversation with Eli-eral rule. If the plaintiff had not called Lenor Hall, the same objection was made, when moin as a witness, there is no doubt she might plaintiff's counsel said, "Plaintiff states that have impeached or discredited his evidence rethis question is not asked for the purpose of garding the lights at the excavation which was charging any admission upon the defendant drawn out when he testified on being called by because the conversation was had with the the defendant. It could not then be claimed mayor of the defendant town, but wholly for that she was impeaching or discrediting her the purpose of impeachment of the witness as own witness. When he in fact testified to the a witness. The objection was overruled, and matter as to which it was sought to impeach an exception taken, and the witness answered, him, he was the defendant's witness, called by "I have no recollection of making such state- it. He had before that time been called by ment." Mrs. Safford, Elinor Hall, and the plaintiff, and testified as to other matters, and plaintiff were each called by the plaintiff in been virtually discharged. He was no more rebuttal, and asked touching the conversations plaintiff's witness as to the matter of lights above referred to. In each case objection than if she had never called him to the stand. was made and overruled, and the witnesses Plaintiff did not call out the testimony as to testified to the conversation. Appellant con- which she seeks to impeach Lemoin, but it was tends that the impeaching wittnesses con- elicited by the defendant while Lemoin was its tradicted Mr. Lemoin upon a matter imma- witness. Whatever reason there may be for terial and irrelevant to the issue. In the the rule which prevents one from impeaching second place, it is insisted that it was not or discrediting his own witness, there is none competent for plaintiff to impeach her own for extending it to a case like this. Courts of witness. We dismiss the first contention by high standing have refused to follow the gensaying that, in view of the statement of eral rule above mentioned, and hold that by counsel for plaintiff, this evidence is to be putting a witness on the stand one is not retreated as offered for the sole purpose, as to sponsible for his credibility in such a sense Lemoin, of laying the ground for impeach- that he is absolutely precluded, when surprised ment, and, as to the other witnesses, of im- by adverse testimony, from showing that the peaching Lemoin. Was it competent and witness had made statements of the facts conreceivable for that purpose? It is no doubt a trary to his testimony. Selover v. Bryant, 54 general rule that one will not be allowed to im- Minn. 434, 21 L. R. A. 418; Smith v. Briscoe, peach or discredit his own witness. 1 Greenl. 65 Md. 561; Johnson v. Leggett, 28 Kan. 605; Ev. § 442; Hunt v. Hoover, 34 Iowa, 79; Hall State v. Sorter, 52 Kan. 531; Crocker v. Agenv. Chicago, R. I. & P. R. Co. 84 Iowa, 316; broad, 122 Ind. 585. So much of the doctrine Gardner v. Connelly, 75 Iowa, 206; Humble v. announced in the above cases as permits the Shoemaker, 70 Iowa, 226; Clapp v. Peck, 55 witness, under such circumstances, to be imIowa, 272. This rule only prohibits impeach- peached or discredited by adverse testimony ment in three ways: First, calling witnesses showing that he had made statement of the to impeach the general character of the witness; facts contrary to his testimony, this court has second, proof of prior contradictory statements not approved of. Hall v. Chicago, R. I. & P. by him; and, third, a contradiction of the wit- R. Co. 84 Iowa, 316; Smith v. Dawley, 92 ness by another where the only effect is to im- Iowa, 312; Humble v. Shoemaker, 70 Iowa, peach, and not to give any material evidence 226. But see Thomas v. McDaneld, 88 Iowa, upon any issue in the case. Becker v. Koch, 380; Smith v. Utesch, 85 Iowa, 381. We held 104 N. Y. 400, 58 Am. Rep. 515; Cross v. in Artz v. Chicago, R. I. & P. R. Co, 44 Iowa, Cross, 108 N. Y. 629. It is said that whether 286, a case where plaintiff had called a witness it be competent for a party to prove that a who testified to nothing of benefit to either witness whom he has called, and whose testi-party, and he was then dismissed, and the other mony is unfavorable to his cause, had previ-party, on cross-examination, drew out evidence ously stated the facts in a different manner, is a question upon which there exists some diversity of opinion." 1 Greenl. Ev. § 444. It will be observed that this is not a case where plaintiff was surprised by the testimony of the witness when examined by her counsel. When the witness was called by plaintiff nothing was asked him relating to the fact as to whether the excavation was lighted. He was interrogated touching other matters, and

not proper to be given on cross-examination, that the witness must be regarded as called by the defendant, therefore plaintiff might contradict him. So, in the case at bar we hold that Lemoin was the witness of the defendant. hence the court properly permitted plaintiff to interrogate him touching his former statements, and, as he denied making them, it properly permitted the plaintiff to impeach him by calling witnesses to testify that statements had been

Q. Mrs. Hall, you are the plaintiff in this of the law. But while the law is satisfied with action?

veyed, and as to which no question of error can arise.

8. Error is assigned upon the refusal of the court to give instructions asked by the defendant. So far as they announced correct principles of law, they were embodied in the court's charge. The third instruction asked was properly refused, because it assumed that plaintiff knew the crossing was unsafe, and knew of the ditch, and knew that it was imprudent to attempt to pass over the crossing. There was no evidence justifying such an inIt is said the damages allowed are excessive. In view of a retrial, we need not discuss that question. Many other questions are discussed by counsel. We have examined the points made, and discover no error except as heretofore pointed out.

Because of the refusal of the court to permit the measurements asked for, the judgment is reversed.

Robinson, J., dissenting:

and enables them to determine the nature and | character of the injury better than to receive it in a secondary way, as it must be described by witnesses." The following cases show the trend of the authorities touching this question: Langworthy v. Green Twp. 95 Mich. 93; Edwards v. Three Rivers, 96 Mich. 625; Lanark v. Dougherty, 153 Ill. 163; Carrico v. West Virginia, C. & P. R. Co. 39 W. Va. 86, 24 L. R. A. 50; Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578, 49 Am. Rep. 724; State v. Wieners, 66 Mo. 29; Louisville, N. A. & C. R. Co. v. Wood, 113 Ind. 548, and 578; Whart. Crim.struction. Ev. § 312; 1 Best, Ev. Morgan's ed. 307; Abbott, Trial Ev. 599; 25 Cent. L. J. 3; 15 Cent. L. J. 2 Mulhado v. Brooklyn C. R. Co. 30 N. Y. 370; King v. State, 100 Ala. 85; Richmond & D. R. Co. v. Childress, 82 Ga. 721; Hatfield v. St. Paul & D. R. Co. 33 Minn. 130, 53 Am. Rep. 14. He would be a bold man who would assert that the evidence of experts is in all cases valueless. The testimony of medical men in the case at bar touching these measurements, a matter not resting in opinion at all, but capable of physical demonstration, is in direct contradiction, and is well calculated to shake one's faith in the reliability of experts. In the interest of attaining justice these measurements should have been taken before the court and jury. We do not hold that in all cases, and as a matter of right, one party may require the injured party to expose the injured part of his person to the jury. But when such exposure is in no way indelicate, and seems to be essen-ination of the alleged injuries of a person in tial in order that the jury may be properly and correctly advised as to the material fact which is in dispute, it is not only the right of the court to order such exposure and examination of measurement of the injured part on the request of a party, but its duty so to do. As we have said, the condition of this foot and ankle was material as bearing upon the question of the permanency of the injury, and the court erred in not ordering the measurements made as requested.

6. Complaint is made of the second division of the court's charge. It is in substance the same as was given on the former trial, and which we held good when the charge was considered as an entirety. While we do not think that the jury could have been misled to defendant's prejudice by the statement of the law therein contained, in view of other parts of the charge, still, as this case for other reasons must be reversed, it is proper to say that on a retrial the court should avoid the statement found in this division of the charge to the effect that it was the defendant's duty to keep its walks in "a safe condition" for public travel. Defendant's duty in that respect is to use reasonable and ordinary care. It is not an insurer of the absolute safety of its walks and crossings. The law in this respect was correctly stated in other divisions of the charge. 7. Complaint is made of the use of the word "pitfall" in the tenth division of the court's charge to the jury. Technically speaking, the word means a trap set to ensnare the unwary. The court used it as describing the hole into which plaintiff fell. While we think the court used the word in a different sense, still it would be better to use a word or words amply expressing the thought intended to be con

I cannot assent to the fifth division of the foregoing opinion. None of the authorities cited in its support appear to me to require the conclusion reached. The larger number of them merely hold that in a case involving injuries to a person it is proper to exhibit the injuries to the jury, and do not treat of compulsory, but of voluntary, examinations. Of the cases cited King v. State, 100 Ala. 85, is the only one which involved the compulsory exam

the presence of the jury. In that case a witness testified that the defendant shot him on the arm, and the defendant, in cross-examination, offered to exhibit the arm to the jury. The state objected, and the objection was sus tained. It was held on appeal that the court erred in sustaining the objection, and in that connection the fact was noticed that no question was raised by the witness, court, or counsel as to the delicacy of the proposed exhibition; that the arm could have been shown to the jury without offense to the modesty or delicacy of feeling of the witness, of the court, or of the persons present in the court-room; and that in view of the conflicting testimony as to the direction from which the shot was fired it might have afforded the jury valuable aid in determining vital questions. In Hatfield v. St. Paul & D. R. Co. 33 Minn. 130, 53 Am. Rep. 14, also cited in the majority opinion, the plaintiff sought to recover for personal injuries which she testified caused her to limp in walking. The defendant requested the court to direct her to walk across the court-room in the presence of the jury, but the court declined to do so. That ruling was sustained on appeal. The supreme court held that a trial court has the power, in a proper case and under proper circumstances, to direct a person to do in the presence of the jury a physical act that will illustrate or show the character of the injuries of which he complains, but that the court "very properly refused to direct the plaintiff to exhibit herself to the jury and bystanders by walking across the room." It was said such an act would only have enabled the jury to determine a fact which was shown by uncontradicted evidence. Whether a person may be compelled, against his will, to submit