The plaintiffs alleged and claimed at the trial that the decedent was killed upon the Division-street crossing; the defendant claimed that the evidence showed that he was killed at a place on the track from fifty to ninety feet west of this crossing. The jury found that he was not killed at the crossing. This issue of fact is all-important in determining the rights and liabilities of the parties. The inquiry of fact whether or not the train came to a dead stop while passing over the Crossing was a material inquiry by the jury in answering question No. 1 of the special verdict. The trial court held that in the light of the statement of defendant’s counsel in opening the case to the jury that the defense would prove that the train came to1 a dead stop and while so stopping decedent manifestly attempted to go between the cars and was thus caught and killed, under the circumstances detailed hereafter, it was prejudicial error for the engineer, Williams, to state to the jury that he, in a signed and written'statement on the day after the accident, had stated that the train came to a .stop, although in immediate connection with this statement while on the witness stand he testified that, such statement was incorrect and that the train in fact did not come to a dead *450stop in passing over the crossing. Williams was called by-plaintiffs for cross-examination at the trial under sec. 4068, Stats., and testified in answer to inquiries propounded by plaintiffs’ counsel that he positively recollected that his train did not stop ■ in passing over the Division-street crossing. Before leaving the witness stand defendant’s counsel asked him if he might be mistaken in so testifying, to which the witness replied: “Did not come to a dead stop.” Defendant’s counsel then propounded the following questions, which were answered as follows:

“Q. Did you make a statement shortly after the accident, Mr. Williams? A. Yes, sir. Q. I want to show you this Exhibit 5, Mr. Williams, and ask you if that is your signature there'? A. Yes, sir. Q. Will you just look at that, please, and refresh your recollection from that, and see whether you are mistaken or not? A. I might be; I am pretty sure it didn’t come to a full stop. Q. Well, read that and let us know whether that refreshes your recollection, Exhibit 5? A. It says here I did. Q. Now, does that refresh your recollection on the matter, or doesn’t it? A. I can’t remember or recollect it.”

The witness then testified that'the statement appeared to have been signed February 17th; that-he thought that this was the next day after the accident; that the facts were then fresh in his mind. After having thus read the statement then and there he declared to the jury: “I am positively sure that I did not come to a full stop.” Objection to all this testimony was entered and a motion made to strike it out as self-serving statements. This motion was denied.

The trial court says that the statement was not offered by the defendant “nor was the examination had for the purpose of impeaching the witness, but merely for the purpose of refreshing his recollection,” and that defendant’s counsel did not refer to this statement in his argument to the jury. This proceeding shows defendant’s counsel exhibited to the witness the written statement for the purpose of having him refresh his recollection, and that the above-quoted *451answer, “It says here I did/’ was not responsive to the question asked him. The witness volunteered the statement. No request was made by plaintiffs’ counsel specifically calling attention to it and to have it stricken; his motion was to strike all this testimony as self-serving statements. We are persuaded that it was proper for defendant’s counsel to call the witness’ 'attention to this signed statement in the manner he did for the purpose of refreshing his recollection, and that the witness’ disclosure of this much of the writing .is not attributable to defendant’s conduct of the examination. The question recurs, Did the court commit prejudicial error in granting a new trial upon the ground that such statement operated to the plaintiffs’ prejudice? We cannot discover any prejudicial effect of this mere voluntary statement by the witness when considered in the light of his repeated statements to the jury in connection therewith that he was positive the train did not stop while passing over the crossing. It is obvious that this bit of testimony was not singled out by the jury for reliance to answer the first question in the negative. The positive denials by Mr. Williams regarding it and the other evidentiary facts in the case clearly refute such a conclusion. It is manifest that the court erred in awarding a new trial solely on the ground of this statement of Williams. It is considered that the order awarding a new trial must be reversed.

By the Court. — The order appealed from is reversed, and the cause remanded to award judgment in accordance with the verdict.