Opinion of the Court.

could, he should have stood up; that of all this the jury must judge; and that if they found from the evidence that the plaintiff was guilty of such negligence, he could not recover. Whatever objections the plaintiff might have urged against these instructions, surely the defendant, upon the issue as to his negligence, was not prejudiced by what was thus said by the court to the jury. The jury have found that the plaintiff was not guilty of contributory negligence. That question was properly submitted to them upon all the evidence, which was contradictory, and as no error of law, in reference thereto, was committed to the prejudice of the defendant, we have no authority to review their finding in that respect. Parsons v. Bedford, 3 Pet. 433, 447; Railroad Co. v. Fraloff, 100 U. S. · 24, 31.

It is assigned for error that the court allowed the plaintiff, against the objection of the defendant, to prove that the highway in question was established before the railroad was constructed. We do not presume that this fact was at all important in the case. When the witness was asked whether the public highway was there before the railroad, the court properly observed that the responsibility of the defendant was not increased or diminished, whether the fact was one way or the other. But it permitted the witness to be asked whether the county road was an old and well-established highway. The question was then changed into an inquiry simply as to how long that highway had been established. The witness answered that he went over it in 1857. The object of this proof was, as we suppose, to show that the defendant could not be ignorant of the fact that at the crossing in question there was a public highway. In that view the evidence, though not important, was not incompetent. There was no dispute as to the existence of the county road as a public highway, and what the witness said, even if incompetent as evidence, could not possibly have affected the result.

Another error assigned is the refusal of the court to allow proof by the defendant of the fact that the manner in which the plaintiff crossed the railroad tracks, between six and seven o'clock in the evening, on his way from Jersey City to the

Opinion of the Court.

Plainly,

County Farm, showed negligence upon his part. this evidence was irrelevant. It did not, in any wise, illustrate the issue as to whether the defendant was guilty of negligence, or whether the plaintiff was guilty of contributory negligence two hours later in the evening, when the plaintiff, returning from the County Farm, attempted to cross the railroad tracks.

At the trial below the plaintiff recalled a witness, Stewart, in rebuttal, and was permitted, against the objection of the defendant, to propound this question: "Did Mr. O'Brien tell you that night what speed, in his judgment, the train that hit the Doctor was moving at the time it hit him?" The answer was: "Yes; he said about sixteen miles an hour, positively." The action of the court in permitting this question and answer is assigned for error. O'Brien was the defendant's night yard- . master at the station, and had testified in chief for defendant that the rear section of the train, when it crossed the county road, was going about ten miles an hour. He denied, upon cross-examination, that he said to Stewart, the night of the accident, that the rear section of the train was moving at the rate of fifteen miles an hour, or that he used words to that effect. The object of the evidence to which the defendant. objected was to impeach the credibility of O'Brien. It was competent for that purpose. But if it was not, the admission. of it is not ground for reversal. Whether the train when it struck the plaintiff's buggy, was going at the rate of ten or sixteen miles an hour, the court rightly held the defendant guilty of negligence, leaving the jury to determine, upon the evidence, the question of plaintiff's contributory negligence. We perceive no error in the judgment and it is

Affirmed.

The administratrix of her husband's estate commenced suit to recover a claim alleged to be due the estate. She resigned and was discharged, and an administrator de bonis non was appointed and qualified, and appeared and obtained leave to prosecute the suit. Held, that she was a competent witness for the plaintiff at the trial.

THE case is stated in the opinion.

Mr. Joshua D. Ball for plaintiffs in error. The court declined to hear further argument.

Mr. John P. Treadwell appeared for defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

The present action was brought April 30, 1885, in the Superior Court of Suffolk County, Massachusetts, by Marie R. Liebsch, administratrix of the estate of Francis J. Liebsch, her deceased husband, against the plaintiffs in error, administrators of the estate of C. Brown Snyder. Its object was to recover the sum of five thousand dollars alleged to have been delivered October 15, 1876, by Francis J. Liebsch to C. Brown Snyder, to be invested by the latter for the benefit of the former, but which the declaration alleged was never invested nor accounted for nor repaid to said Liebsch. The defendants denied all the material allegations of the declaration. The case having been removed from the state court on their petition, upon the ground of the diverse citizenship of parties, was docketed in the court below at its October term, 1885.

At a trial on the 9th of December, 1886, Marie R. Liebsch was called as a witness in her own behalf, as party plaintiff, to prove the delivery of the five thousand dollars to Snyder,

Opinion of the Court.

the circumstances of such delivery and his promises in relation thereto. Objection having been made to her competency as a witness to those facts, the case, on motion of plaintiff's counsel, was withdrawn from the jury and continued. Subsequently, December 13, 1886, Marie R. Liebsch tendered to the proper court her resignation of the office of administratrix. The resignation was accepted on the same day, and the defendant in error appointed administrator de bonis non. On the 1st day of June, 1887, Fiedler, as such administrator de bonis non, filed a written motion asking leave to come in and prosecute the action in place of Marie R. Liebsch, resigned. This motion was allowed by the court "as of December 13, 1886, by consent of both parties."

At the next trial Mrs. Liebsch was offered as a witness in behalf of Fiedler, administrator de bonis non, to testify against the defendants in respect to transactions of herself and husband with Snyder, and to statements by the latter to them tending to sustain the cause of action set out in the declara- · tion. The defendants objected to her competency as a witness to prove such transactions and statements, unless called by them, or required to testify thereto by the court. The objection was overruled, and she was permitted to testify as to those transactions and statements. Her testimony was material and she was the only witness called by the plaintiff, except one who testified as to the administration proceedings. The plaintiff's counsel claimed at the trial that $1400 had been paid to Mrs. Liebsch by Snyder in his lifetime, but after the death of Francis J. Liebsch, and that this payment should be deducted. There was a verdict and judgment in favor of the plaintiff Fiedler, administrator de bonis non, for $6684.

In the courts of the United States no person can be excluded as a witness in a civil action by reason of being "a party to or interested in the issue tried," except "that in actions by or against executors, administrators or guardians in which judg ment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party or required to

Opinion of the Court.

testify thereto by the court." Rev. Stat. § 858; 12 Stat. c. 189, p. 588; 13 Stat. c. 210, § 3, p. 351; 13 Stat. c. 113, p. 533. This exception has no application in the present case. Upon the acceptance of Mrs. Liebsch's resignation as administratrix, and when the order was made allowing her successor, the administrator de bonis non, to prosecute the suit in her place, the action ceased to be one in which she was concerned as a "party," either within the meaning of the present statute, or within the rule, in force prior to its adoption, which excluded as a witness, without reference to his interest in the issue, one who was a party to the record. De Wolf v. Johnson, 10 Wheat. 367, 384; Scott v. Lloyd, 12 Pet. 145; Stein v. Bowman, 13 Pet. 209; Bridges v. Armour, 5 How. 91, 94. It is of no consequence that she stood upon the record as the original plaintiff who sought judgment against the personal representatives of Snyder. As she ceased before the final trial to be administratrix, and as no judgment could have been rendered in her favor, as administratrix, against the administrators of Snyder, she was competent, under the statute, to testify to any transaction with or statement by him relating to the matters in dispute. Her credibility, in view of all the circumstances, was for the jury. The result would not be different even if it had appeared that she was personally interested in the issue tried. Potter v. National Bank, 102 U. S. 163, 164.

Judgment affirmed.