His Honor was in error in restricting the examination of the plaintiff Miller upon the former trial to the purpose of corroboration and impeachment, and he was doubtless misled by not taking into consideration that it was the examination of a party and not of an involuntary witness.
“Statements contained in the evidence given by a party as a witness or adopted by him are primary in their nature and constitute informal judicial admissions which affect the party not only in the trial where given, but in any other hearing of the suit even upon appeal.” Chamberlain on Evidence, vol. 2, sec. 1268.
The principle applicable to the evidence of a witness, and of a party is tersely stated in Medlin v. Board of Education, 167 N. C., 241, where the Court says: “Evidence of contradictory statements are not substantive evidence, but merely impeaching testimony, unless it is an admission by a party in interest.”
One of the important facts upon this trial was whether the plaintiff knew of the existence of the lever and of its use, and whether it was placed so that it could be reached by him, and the defendant was entitled to have the jury consider his statement as to this and other relevant facts made during his examination on the former trial as substantive evidence.
There is therefore error which entitles the defendant to a new trial.
We have carefully considered the record, and are of opinion that there is evidence of negligence which the jury ought to be permitted to consider, and that the motion for judgment of nonsuit was properly overruled.
New trial.