Opinion of the Court. the part of the company. It was justified in so instructing the jury, because every one knows, and therefore the court below knew, that such use of the defendant's tracks, where they crossed the county road, unnecessarily endangered the safety of any one who, at the time, crossed the railroad tracks while travelling on that highway. The county road upon which the plaintiff was travelling was not, it is true, much used by the general public. But that fact only affects the degree of care the defendant was bound to observe, and does not establish a right to have its cars approach the crossing, where the plaintiff was hurt, and over which the public were entitled to pass, as if there were no highway there at all. The court, in our judgment, did not err in holding, as matter of law, upon the undisputed facts in the case, that the defendant was guilty of negligence in the particulars to which we have adverted. The next question is as to the instructions relating to the alleged contributory negligence upon the part of the plaintiff. In Railroad Co. v. Jones, 95 U. S. 439, 442, it was said that, where the damage was occasioned entirely by the negligence or improper conduct of the company, the plaintiff is entitled to recover; but that, where "the plaintiff himself so far contributed to the misfortune, by his own negligence or want of ordinary care and caution, that, but for such negligence or want of care and caution on his part, the misfortune would not have happened," he could not recover. So, in Railroad Co. v. Houston, 95 U. S. 697, 702, which was an action for damages against a railroad company, upon the ground of negligence, it was said: "The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the employés in those particulars was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she Opinion of the Court. omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others." Again in Kane v. Northern Central Railway Co., 128 U. S. 91, 94, which was an action by an employé of a railway company to recover damages for personal injuries alleged to result from its negligence, this court said "that an employé is guilty of contributory negligence, which will defeat his right to recover for injuries sustained in the course of his employment, where such injuries substantially resulted from dangers so obvious and threatening that a reasonably prudent man, under similar circumstances, would have avoided them if in his power to do so." See also District of Columbia v. McElligott, 117 U. S. 621, 633. These principles are applicable to the issue in this case as to contributory negligence. The jury were told, that, while it was the duty of the railroad company to exercise great care to warn travellers on a public highway of approaching trains, it was an equally imperative duty in travellers to exercise the same degree of care to avoid and keep off the railroad tracks when trains are approaching and crossing; that if the plaintiff advanced to and upon the tracks of the railroad without the exercise of such care to discover the approach of trains, or attempted intentionally to pass in front of a train within dangerous proximity, he was guilty of negligence; that when at a safe distance from the tracks, where the opportunity of seeing was best, it was his duty, especially in view of the dangerous character of this crossing, to stop, look up and down the road, and listen for trains; and that if he did not so stop, look and listen, he was guilty of carelessness; that if, after crossing the first or second track, the plaintiff, by the exercise of such care, could have discovered the approach of the train which struck him, he was guilty of carelessness in not discovering it and stopping short of the east-bound track; that the jury must judge of the plaintiff's opportunity of seeing whether standing cars were in the way, and, if they were, whether he could have seen over them by standing up in his carriage; that if he 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. County Farm, showed negligence upon his part. Plainly, 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 yardmaster 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, |