It was improper to allow Mrs. Sweet’s . * . . . _ testimony that neither she nor the railroad company had paid for the casket in which the body of the deceased was buried, as this action was not brought for the benefit of the estate of the deceased, and the evidence could have tended only to mislead or confuse the jury. The funeral expenses were not an element of damages in this case. The action was broug'ht for the benefit of the widow and next of kin alone.
i. Damages ill action for wrongful
Section 6484 of Mansfield’s Digest provides that, ‘ ‘ in all cases of change of venue, the action shall stand 0 for trial in the court to which the change is made, at the first term of the court which commences more than ten days from the filing of the papers of the case in the office of the clerk of such court.”
2. wiieu rsfusiil of continuance not prejudicial crr01'’
The suit was begun December 11th, 1890. The change of venue was ordered May 26th, 1891. The court to which the venue was changed began August 3d, 1891. The transcript and papers in the case were filed in.the court to which the venue was changed July 24th, 1891 — not ten days before the beginning' of the term of the court. The Desha circuit court obtained jurisdiction of the cause by the filing of the transcript and papers in the case in that court. We are of the opinion that no error prejudicial to the appellant was committed- by the court by proceeding to the trial of the cause at that term of the court. This court' will not reverse a judgment for error that is not prejudicial. Section 5083 of Mansfield’s Digest provides that “the court must, in every stage of action, disregard any error or defect in the proceedings, which does not affect the *296substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”
The questions and answers thereto made by the witness, McKennon, in reference to a conversation had by him with Mcllwain, the conductor of the train, sometime after the accident occurred, and which tended to contradict Mcllwain by showing that he had made a different statement previously to the one set out as the statement he would make, if present, in the motion for continuance, were material, as they tend to bear upon the question of contributory negligence upon the part of the deceased. They were not proper because no foundation had been laid to warrant them for the purpose of contradicting Mcllwain. The act of 21st February, 1887 (Acts 1887, sec. 1, p. 19), provides that “a motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made only upon affidavit,” etc. “ Provided, the opposite party may controvert the statement so set forth in the said motion for continuance by evidence.”
Our statutes, sections 2902 and 2903 of Mansfield’s Digest, are, respectively, as follows :
“ A witness may be impeached by the party ag'ainst whom he is produced, by contradictory evidence, by showing- that he has made statements different from his present testimony.”
‘ ‘ Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning the same, with the circumstances of time and persons present, as correctly as the examining’ party can present them.”
This was not done in this case, and the contradictory testimony was improper without it.
The court is of the opinion that the proviso in the above .section of the act of 1887 was not intended to, and *297dose not, dispense with the necessity for laying the proper foundation for contradicting a witness by first asking him whether he has made the statements testified to by the person by whom it is soug’ht to contradict him and at the time and place indicated, thus affording him an opportunity to state what he said, and to explain what he meant by it. Billings v. State, 52 Ark. 308.
If it is desired to controvert statements of the application for continuance, it can be done by any proof showing that the statements are not true (without laying the foundation as indicated), other than evidence that the witness had made a different statement; but if it is sought to contradict the witness by proving that he has made a different statement, and thus impeach him and discredit his testimony, it cannot be done under the rules of the law until he has been afforded the opportunity above indicated. Justice and common fairness to the witness prohibit it, and the adjudicated cases so holding are numerous. Conrad v. Griffey, 16 How. (U. S.) 38, and cases cited. This applies as well to depositions as to oral examinations in court. Unis v. Charlton's Admr. 12 Grattan, 484.
We think the statement of what the absent witness would swear, when it is admitted that he would swear what it states, should be treated as a deposition.
The testimony of T. B. Atkinson, when recalled by the plaintiff, as to statements made in his presence, sometime after the accident, by some of the railroad employees, was mere hearsay and clearly incompetent.
4. Declarations of employees not admissible.
These statements by the railroad employees could not be taken as admissions by the railroad company. In Railway v. Barger, 52 Ark. 78, it is held that the statement of the depot agent as to the condition of the platform before the accident in that case was incompetent. The statement in this case was not a part of the res gestee, and was not admissible as such, because it was not *298made at the time of the accident or so near to it as to throw lig'ht upon it. Waldele v. N. Y. Cent. R. Co. 95 N. Y. 274; Vicksburg & C. R. Co. v. O'Brien, 119 U. S. 99.
5. Duty of carrier toward passengers.
The first and second instructions for the appellee were not correct. The objection to the first is that, as applied to this case, it was not full enough. As to the second, the railroad company, in operating its freight train with caboose attached for passengers, was not bound to the “utmost diligence which human skill and foresight could* effect,” as set out in this instruction given for the appellee.
The law in this behalf, applicable to this case, is correctly laid down in the Arkansas Midland Railway Company v. Canman, 52 Ark. 524-5, where it is said that “railroad companies are bound to the most exact care and diligence, not only in the management of trains and cars, but also in the structure and care of the track, and in all the subsidiary arrangements necessary to the safety of the passengers. While the law demands the utmost care for the safety of the passeng-er, it does not require railroad companies to exercise all the care, skill and diligence of which the human mind can conceive, nor such as will free the transportation of passengers from all possible peril. They are not required, for the purpose of making- their roads perfectly safe, to incur such expenses as would make their business wholly impracticable, and drive prudent men from it. They are, however, independently of their pecuniary ability to do so, required to provide all things necessary to the security of the passenger reasonably consistent with their business and appropriate to the means of conveyance employed by them, and to adopt the highest degree of practical care, diligence and skill that is consistent with the operating of their roads, and that will not render their use impracticable or inefficient for the intended purposes of the same.”
*299There was no error in refusing the fourth prayer of the appellant. The law on the point covered by it was sufficiently given by other instructions. There was no error in the modification of this instruction by the court.
For the errors indicated, the judgment is reversed, and the cause is remanded for a new trial.