Metcalf, J.
The first count in the plaintiff’s declaration is founded on the Rev. Sts. c. 39, §§ 78, 81. Section 78 requires every railroad corporation to cause a bell, of at least thirty-five pounds in weight, to be placed on each locomotive engine passing upon their road, and to be rung at the distance of at least eighty rods from the place where said railroad crosses any turnpike, &c. upon the same level with the railroad, and to be kept ringing until the engine has crossed such turnpike, &c. Section 81 provides that if any such corporation shall unreasonably neglect or refuse to comply with said requisition, it shall be liable for all damages sustained by any person by reason of such neglect.
The first question discussed at the argument of this case was, whether the defendants are liable, under these sections, or whether the action can be maintained only against the South Shore Railroad Company; and our opinion is that the defendants are liable. The indenture executed by the two corporations on the 20th of September, 1847, and their agreement made on the 31st of March, 1849, constituted a lease of the South Shore Railroad to the defendants, which took effect, as such, on the 1st of April, 1849. Bac. Ab. Leases, K.; 1 Platt on Leases, 579 & seq. We need not inquire whether a railroad corporation can make a valid lease of its road, either to a like corporation or to individuals, without legislative authority expressly conferred; for the legislature, by a statute passed before the happening of the accident now in question, (St. 1849, c. 163,) expressly authorized the defendants “to carry out their contract” of September 20th, 1847, for a lease of the South Shore Railroad. The lease, then, being valid, we cannot doubt the liability of the defendants for any neglect or refusal by them to comply with the requisitions of the Rev. Sts. c. 39, § 78. On the 1st of April, 1849, and thenceforth, the railroad which was leased to them, Was “ their road,” within the just meaning of that section. Not *569can we doubt then liability for an injury caused by any other culpable neglect of theirs in the management of their engines on the same road. For railroad corporations are bound to use all reasonable care, besides that of ringing a bell, &c. as directed by statute, to avoid collision when their engines are crossing a turnpike or other way. Bradley v. Boston & Maine Railroad, 2 Cush. 539. And so the jury were instructed in the present case. Exception is taken, however, to the instructions given on this point. It is said that they were such as authorized the jury to find that it was the duty of the defendants to have had a gate at the crossing, if that was a reasonable precaution for the place and circumstances, and to return a verdict against them, because they had not a gate; whereas, by the Rev. Sts. c. 39, § 80, and St. 1846, c. 271, § 2, railroad corporations are not bound to erect gates at crossings, unless specially required so to do by county commissioners. But we see no error or defect in the instructions. The judge left it to the jury to decide whether precautionary measures, in addition to the ringing of a bell, ought to have been adopted by the defendants to prevent a collision, and whether, under the circumstances of the case, they used reasonable care to prevent it. The verdict, therefore, shows that the defendants had not adopted reasonable precautionary measures; and we cannot inquire what might have been the views of the jury as to the specific measures which the defendants ought to have adopted. It is certain that nothing in the instructions warranted the jury to find the defendants guilty because they omitted to do that which the law did not require them to do.
Exception is also taken to the ruling of the judge that the plaintiff had a right to require that the answers of Burlingame, the defendants’ witness, to the 20th and 21st interrogatories put to him, should be read to the jury. Perhaps it is immaterial in this case whether that ruling was right or wrong, because the answers of the witness were such as could neither do the plaintiff any good nor the defendants.any harm. But as the point has been argued, and may hereafter be of some practical importance, we have considered it, and have come to the conclusion that a party has a right to such of the *570testimony contained in a deposition taken by his adversary, as he may deem favorable to himself, if it be testimony which it is competent for his adversary to introduce. When testimony is given viva voce, all that a witness says on his examination in chief, if it be competent testimony, must be taken as he states it, although it operates against the party who calls him ; and if, on cross-examination, his answers to questions, which the party calling him could not put, favor that party, those answers cannot be suppressed; each party being entitled to the benefit of all the legal testimony that favors his cause,.from whatever witnesses it proceeds. The same rule is applicable, generally, to testimony given in depositions. Breyfogle v. Berkley, 16 S. & R. 264; Calhoun v. Hays, 8 Watts & Serg. 127. Is a case like the present within this rule, or an exception to it ? The defendants insist that as the interrogatories in question were filed for the sole purpose of meeting, by the answers thereto, the testimony of Tilden, in his deposition taken by the plaintiff, and as his testimony was excluded by the judge, they ought not to have been required to submit Burlingame’s answers to the jury. The plaintiff, on the other hand, insists that he had a right to have those answers read to the jury, because the defendants did not file, with the interrogatories, a notice that they were filed de bene esse, and that the answers were not to be used, except to meet Tilden’s testimony. He admits that if such notice had accompanied the interrogatories, he could not have rightfully called for the reading of the answers. And we are of opinion that when one party takes a deposition on interrogatories, for the purpose of meeting the testimony of a witness who has deposed, or testimony which he may expect the other party will produce, but does not intend to use the answers thereto, unless the other testimony is introduced, he must accompany the interrogatories with a distinct notice in writing that his purpose is merely to meet the testimony of his adversary’s witness or witnesses; and that if this is not done, the answers must be read to the jury, if required by the other party. We deem this the most eligible rule in such eases. It will save to each party all his just rights, and prevent all unfairness and surprise.
*571It was suggested, in argument, that the judge should have decided, upon inspection or upon the affidavit of the counsel who filed the interrogatories, that they were filed for the purpose of meeting Tilden’s testimony; and that, in all cases, the judge, at the trial, should decide whether or not, upon the face of interrogatories, and upon examining the other evidence in the case, it appears that they were filed merely for the purpose of meeting a contingency. But we do not adopt these suggestions. In our judgment, the course which we have indicated is much preferable, as a matter of practice. It is recommended by its simplicity, convenience, and certainty; and it will prevent the necessity of a judge’s trying questions of fact, or exercising a discretionary power for want of a fixed rule to guide him. Judgment on the verdict.