er, and that question is the subject of the learn the meaning of the writing at the time sixth and seventh exceptions. and place when the contract was made, all the surrounding circumstances at that time necessarily throw light upon its meaning and aid in interpreting it. Williston on Contr. par. 618. Applying these rules to the facts before us, it is clear that by the use of the word "approximate” the parties intended to enlarge and not to restrict the time of shipment. The sixth exception refers to the court's refusal of a prayer offered by the defendants at the close of the plaintiff's case, in which the court was asked to direct a verdict for the defendants on the ground that there was no evidence legally sufficient to support the plaintiff's claim. After the refusal of this prayer the defendants proceeded with their case and offered testimony in support of their contentions. In doing that they waived this exception to the court's ruling on their prayer, and it cannot be review in this court. Wilkin Mfg. Co. v. Mel--conditions which had a tendency to hinder vin, 116 Md. 108, 81 Atl. 879; Barabasz v. Kabat, 91 Md. 55, 46 Atl. 337; N. Y., etc., Co. v. Jones, 94 Md. 35, 50 Atl. 423; United Rys., etc., Co. v. Deane, 93 Md. 624, 49 Atl. 923, 54 L. R. A. 942, 86 Am. St. Rep. 453. At the time the contract was made the evidence conceded by the prayer showed there was a shortage both of labor and material and "a general congestion in transportation" and delay the manufacture and shipment of such merchandise as was the subject of this contract, and which were "abnormally unfavorable for shipments at fixed, definite times," and which could not be prevented by "the most diligent efforts that the manufacturer could and did make." Under such circumstances the most natural and probable desire of the manufacturer would be to secure some latitude in the time limited for the performance of the contract, and that purpose and the reason for it must have been patent to the buyer, since both knew that, while the shipment might be made in March, yet it was also possible that, under conditions then existing, it could not be made within that time. When, therefore, it was stipulated that the delivery dates were "approximate only," it was intended that delivery should be made "near," or "about," or "shortly after" the month of March, but not necessarily during that month, and in determining what would be a satisfactory compliance with that undertaking we should ascertain what under all the circumstances was a reasonable time for the shipment, because since the time of performance is not definite (and the use of the word "approximate" excludes the idea of definiteness and exactness), there is no other standard upon which we can rely (35 Cyc. 180), than that fixed by reason and common experience; and we cannot say as a matter of law that there was no ev. idence in the case legally sufficient to war [2] The subject of the seventh exception is the court's refusal to grant a similar prayer at the close of the whole case. The appellants contend that this prayer should have been granted because the goods were not shipped within the time stipulated in the contract of sale. It is well settled that time is of the essence of commercial contracts of the nature of that sued on in this case (Penn Oil Co. v. Triangle P. & G. Co., 136 Md. 574, 111 Atl. 482), and if the contract had contained no provision as to the time other than that the shipment was to be made in March, the appellants would have had the right to cancel the contract and refuse the shipment, since it was not made within that time. But the contract provides expressly that "De livery dates mentioned are approximate only," and since both parties executed it and are bound by its terms, the only question is whether under those conditions it can be said as a matter of law that a delay of 49 days was sufficient to warrant the defendants in canceling the contract and refusing to accept the goods, and the answer to that question turns largely upon the meaning to be given the word "approximate." Literally the word means "near to," and in ordinary usage it is equivalent to "about"; "a little more or less"; "close." Oxford Dictionary; Stand-rant the court sitting as a jury from findard Dictionary; 4 C. J. 1465. ing that the appellee had made delivery in reasonable and substantial compliance with the terms of the contract, and if he did so the plaintiff was entitled to recover (Bagby v. Walker, 78 Md. 239, 27 Atl. 1033). In the contract under consideration it is used to qualify the stipulation as to the time when the shipment was to be made and to an extent made that time indefinite, and since in the construction of contracts the primary There is nothing in this conclusion in conrule is to ascertain and effect the mutual in-flict with the cases of the Standard Scale, tent of the parties (13 C. J. 522), it becomes etc., Co. v. Balto., E. & N. Co., 136 Md. 283, necessary to inquire what meaning the parties intended it to have as used in this contract. In determining that intention "the contract itself must be read in the light of the circumstances under which it was entered into" (Saunders Co. v. Ducker, 116 Md. 479, 82 Atl. 154, Ann. Cas. 1913C, 817), be 110 Atl. 486, 9 A. L. R. 1502, in which the court held that a delay of a year in a contract providing for prompt delivery was not a reasonable compliance with the contract, or of Salmon v. Boykin, 66 Md. 541, 7 Atl. 701, in which it was held that a definite and specific stipulation in a mercantile contract as to (115 A.) In an action by a child injured by a gate falling upon him while walking along a sidewalk, held. that court did not err in submit ting defendant's negligence to the jury. 4. Negligence 121(3)-Presumption of negligence held to arise from sidewalk pedestrian's injury by gate. Where testimony showed that defendant's gate had no hinges, and that it fell upon plaintiff child while passing on the sidewalk, it was error to instruct that no presumption of negligence arose from the mere happening of an accident, and that the burden was on the plaintiff to prove that the accident in question was occasioned by the negligence of the defendant; a prima facie presumption of negligence arising from the accident itself. 5. Negligence of the contract. There are instances, as in 13. Negligence 136 (20)-Abutting owner's the case first referred to, where the facts negligence as to sidewalk pedestrian hurt by not in dispute establish the unreasonableness gate held for jury. of the delay as a matter of law, but we cannot give to the facts involved in this case any such conclusive and decisive weight. From what has been said, it follows that there was no error in the court's ruling in reference to the prayer under consideration. [3] There are five exceptions relating to the admission of evidence. It is not clear upon what theory these exceptions rest. The testimony objected to was given by V. A. Abbott, a shipping clerk for the appellee, who had been in that position continuously for 15 years, and by J. F Taylor, its general manager, secretary, and treasurer, who had held those positions for 30 years. They de scribed in the evidence under consideration the conditions as to labor, materials, and transportation existing at their factory from the time the contract was made until the goods referred to in it were shipped. These In action for injuries to a small child, refacts were all relevant to the issues involv-ceived when defendant's gate fell upon him ed in the case, and especially to the question while on the sidewalk, it was erroneous to inas to whether the delay in shipment was un- struct that, if the gate was a private entrance reasonable, and we can see no valid objec-leading to defendant's yard, no duty rested on tion to them. It is true that the witnesses defendant to keep it in safe condition in order did incorporate in their testimony statements to avoid injury to people pulling or taking hold of it. as to the practice and custom observed in their business as to what was a reasonable time within which to make shipments, but all such statements were struck out and excluded from the consideration of the court, and could not have injured the appellants. Finding no errors in the rulings of the Bal-taking hold of his private gate, where the only timore city court, the judgment appealed from will be affirmed. 35-Instruction on abutting owner's duty to sidewalk pedestrian held er roneous. 6. Trial 252 (2) — Instructions supported only by impeaching evidence should not be given. It was error to instruct that defendant owed no duty to avoid injury to people pulling or had taken hold of the gate was a statement of evidence that the injured party, a small child, the only eyewitness to a third party that the Judgment affirmed, with costs to the appel- child had climbed upon the gate; such state lee. (139 Md. 567) PINDELL v. RUBENSTEIN et ux. (No. 43.) (Court of Appeals of Maryland. Dec. 2, 1921.) I. Witnesses 379(2)-Inconsistent statement held admissible. Where a witness testified that gate fell on child as she was passing, a statement made to a third person by such witness that gate fell because the child climbed upon it was admissible for purpose of impeachment, where a proper foundation was laid. 2. Evidence 237, 317 (8)-Statements of mother and next friend of injured child held hearsay, and not admissions binding on child. In an action for injuries to a child, it was error to ask mother, suing as next friend, if she had not made certain statements to a third party as to how the accident occurred, and upon her denial to prove such statements, where she did not see the accident and did not know of her own knowledge how it occurred, the evidence elicited being hearsay, and her admissions not being binding upon the child. ment having no effect other than to impeach the credibility of such eyewitness, who testified that the child was not climbing on the gate. Appeal from Superior Court of Baltimore City; James M. Ambler, Judge. Action by Edward H. Pindell, an infant, by Bertha Pindell, his mother and next friend, against Herman Rubenstein and wife. Judgment for defendants, and plaintiff appeals. Reversed, and remanded for new trial. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. Harry O. Levin, of Baltimore, for appellant. Dickerson & Nice, J. Calvin Carney, and C. Milton Dickerson, all of Baltimore, for appellees. OFFUTT, J. The appeal in this case was taken from a judgment of the superior court of Baltimore city entered in an action on the case brought by the infant plaintiff 860 Md. against the appellees to recover damages down" and led into the appellees' yard. She Since the legal sufficiency and the legal effect of the evidence is involved, it is necessary to refer in some detail to the facts of the case and the testimony given in respect to them. who worked at the time across the street Martin J. Scharf, a blacksmith's helper, Calverton road is about 30 feet wide at that from the appellees' store, testified that the point; that he had seen the gate in the fence lining Mr. Rubenstein's place, and that "he weeks, and that they would have to take it saw the gate off the hinges nearly three off the latch and lift it over in order to open it up"; that he saw the garbage and the ice man and Mr. Rubenstein himself open it that Edward H. Pindell on July 17, 1920, was not quite 3 years old. His mother, who then lived at No. 14 South Calverton road, on that day sent him to a nearby store with her younger sister, Winona Seymour, then about 10 years old. On their way to the store the two children went along the street by the appellees' property, and which was separated from it by a wooden fence, in which there was a wooden gate about five or six feet high. As they passed this gate, it fell and struck the infant plaintiff, break-way; that it was off its hinges before and ing the "large bone of the left leg" in three places, "and the small bone in two." There was no direct testimony as to the actual happening of the accident except that of Winona Seymour. When asked to tell what happened she said: "July 17th my sister sent me to the grocery store to get a needle, and we walked by the gate, and the gate fell on him." at the time the boy was hurt; that there the gate from which the screws were misswere T-hinges at the top and bottom of ing; that he saw the gate lying on the child and saw the little girl move it and carry the hinges "were afterwards fixed"; that it blew child into the store; that the gate or the down in a windstorm, and about a week after the accident Mr. Rubenstein "came over cross-examination he said that the gate was and borrowed a hammer and fixed it up." On opened by lifting it around; that the "fence part" of the hinges was loose, and the gate was held in place by a latch. She was then asked, "Were you holding Edward's hand?" and she answered, "Yes, sir." After testifying that she was holding Edward's right hand with her left, and that he was walking on the side next to the gutter, and that she was between him and the contractors, engaged in the business of conJoseph O'Connell, foreman for a firm of fence, she was asked to further describe structing cement alleys, and who is a broththeir relative positions, and in reply sheer-in-law of Mrs. Pindell, testified that he said: noticed the gate particularly on the Monday "He was holding my hand and he was in back before the accident, and at that time the top of me." hinge was gone and the bottom hinge "just And, when asked to tell what happened it, and that the part that "hooks on the fence set up in place," with one old rusty screw in she answered: "As we were walking down the street, well, I heard him scream, and when I looked back the gate was on him, and I slid the gate off and picked him up and carried him in the store." on the day the boy was hurt he again saw was not hooked, just set in place," and that the gate, and it was in the same condition. On cross-examination, after going over in greater detail the facts referred to above, the gate so carefully on the Monday before the witness was asked why he had examined the accident, and he replied: It I know the gate was going to fall on me. She further testified that the gate was a heavy wooden gate and was "off the fence." She carried the child to the store and then carried him home and handed him over to his mother. On cross-examination she said she did not actually see the gate fall, as Edward was about two feet behind her at that time; that when she first saw Edward after the accident he was lying on his back with his face towards the fence, with the gate "on all of him but his head," and that, while the gate did not hit her, she "was only a little way from it," and that she and Edward were walking up close to the gutter. about 10 months before the date of his tesWilliam A. Calvert, a carpenter, said, that She further testified that the gate was made timony (June 25, 1921), while at work for up of a number of strips "running up and | Mr. Rubenstein, he had occasion to use the it was going to fall on him because he did (115 A.) gate; that then it was hanging on a staple | evidence. These exceptions we will now conand to open it he had to pick it up and carry sider. it around and lean it against the fence; that the bottom hinge was off the gate and the top hinge on; that when he went through he closed it and went inside and hooked it, and then it was safe. On cross-examination he said that the wood in the gate was sound, and that, when closed and hooked from the inside as he left it, it was safe, and would not have fallen unless pulled over or pushed; that it would not fall unless it were unhooked. Dr. Edward F. Grempler, a physician, testified to having examined the boy, and as to the nature and extent of his injuries, from which he said he had fully recovered. [1] In the cross-examination of Winona Seymour she was asked if, when she went into the appellees' store after the accident, she had not said to Mr. Rubenstein, "It is not your fault; Edward climbed on the gate and pulled it over on him;" and she denied having made the statement. The defendants offered to prove by several witnesses that she had made the statement on that occasion, and that testimony was admitted over the plaintiff's objection. The admission of this evidence is the subject of the first, third, and fifth exceptions. We find no error in these rulings. The witness Winona Seymour had testified that the gate fell on Mrs. Bertha Pindell testified that she had the boy as he was passing by it. A statesent her sister and the little boy to the de- ment that it fell over because he climbed upfendants' store for a needle; that she knew on it was inconsistent with that testimony, nothing of the accident until she heard the and was admissible for purposes of impeachchild screaming when her little sister brought ment, provided a proper foundation was laid him in, a short time after they had gone out. for its admission, as was done in this case, She also described the care and attention by asking the witness on her cross-examina. which the child had and the medical and tion whether she had not made the contradicsurgical treatment which he received. On tory statement to a designated person and cross-examination she was asked, first, informing her of the time and place when it whether she had not told Mrs. Rubenstein was supposed to have been made. 28 R. C. that Winona her sister had told her that Ed-L. p. 633; Caledonia F. Ins. Co. v. Traub, ward was climbing on the gate and it fell 83 Md. 524, 35 Atl. 13. on him, and, second, whether she had not made a similar statement to "the lady upstairs," and in response to these questions she denied having made such statements, and also denied that her sister had told her that Edward was climbing on the gate. Mrs. Pindell on asked this question: cross-examination was had told you that the little boy was climbing "Did you tell the lady upstairs that Winona on the gate?" and the defendants then called Mrs. Lola She denied having made the statement, On behalf of the defendants the testimony of Mrs. Lola Smith, John F. Malone, Lillian Rubenstein, a daughter of the defendants, Herman Rubenstein and Dora Ruben-Smith, and, having proved that she lived on the second floor of the house in which Mrs. stein, was offered to prove that Winona Sey mour had said that Edward had climbed on the gate, and that Mrs. Pindell had said that Winona had made that statement. In addition to that testimony Mr. Rubenstein said that he had never seen anything wrong with the hinges on the gate at all; that up to the time of the accident he never saw anything about the gate out of order; that the wood of the gate and the fence was in good condition; that he examined the gate the day it fell, and the screws in parts of the hinges which had been fastened to the fence had pulled out, but the wood of the fence was sound: and that on the day of the accident he had nailed the hinges back in place. At the conclusion of the testimony this plaintiff offered one prayer, which was grant ed, and the defendants six, of which the second, fourth, and sixth were granted. To the granting of the sixth prayer the plaintiff specially excepted, and the rulings of the court in overruling these special exceptions and in granting the defendants' prayers are the subject of the sixth exception, while the Pindell lived at the time of the accident, she was asked: "Did the mother of the little boy make any statement to you as to how the accident happened?" An objection to this question was overruled, and the witness said that Mrs. Pindell had made such a statement to her on the day of the accident. She was then asked to tell what that statement was. Counsel for the appellant again objected, but the court directed the witness to answer, and she said: said to her, I asked her how little Edward was, "Mrs. Pindell says to me,-as I went out I and she told me she sent Winona and Edward over to the store to get a needle, and Winona was walking in the street and Edward walking on the pavement and pulled on the gate and the gate fell on him, and she told me, I said to her, 'Why don't you go over and see Mr. Rubenstein?' She said, 'I have been over there, and Mrs. Rubenstein volunteered to get the doctor, and she would do all and pay all that was nec Some question has been made as to whether the exception noted to the court's ruling applied to this evidence, but, in view of the statement of the learned and careful judge who tried the case that it was subject to the exception, we will treat the exception as valid. ing to show she had made them, because, since they were only hearsay, and therefore irrelevant and incompetent, and as she could not bind the infant plaintiff by making them, it was wholly aside from any issue in the case whether she made them or not, and, as was said in Sloan v. Edwards, 61 Md. 105: "It is true the credit of a witness may be impeached by proof that he has made statements out of court inconsistent with his testimony given in court. But it is a general rule that à witness cannot be cross-examined as to any fact which, if admitted, would be wholly collateral, and irrelevant to the matters in issue, for the purpose of contradicting him by his testimony. And if the witness answer such other evidence, and in this manner to discredit an irrelevant question without objection, evidence cannot afterwards be admitted to contradict his testimony on the collateral matter. 2 Phill. Ev. (6th Am. Ed.) 398; Goodhand v. Benton, 6 G. & J. 481; Attys. Gen. v. Hitchcock, 1 Exch. 91, 101." This brings us to the sixth exception, which deals with the rulings on the prayers. [2] Mrs. Pindell was also asked on crossexamination if she had not on the day of the accident made a similar statement to Mrs. Rubenstein, and she denied having done so. The defendants offered to prove by Mr. Rubenstein that she had made such a statement to him, and he was allowed to testify over the plaintiff's objection that Mrs. Pindell told him that she knew it was not his fault; that, while she was not there when the accident happened, the little girl told her. These rulings are the subject of the second and fourth exceptions. There was, in our opinion, prejudicial error in these rulings. Mrs. Pindell had positively disclaimed any knowledge of the accident or the instrumentality which caused it. Anything which she may have said, therefore, as to it was neces-The defendants' second, fourth, and sixth sarily hearsay, irrelevant, and collateral to any issue involved in this case. She was in no sense a party to the cause within the meaning of the rule permitting evidence to be given of admissions against interest made by a party, and her admissions were not competent to affect the interest of the infant whom she represented. 22 C. J. 353; Jones on Ev. par. 266; Baltimore City Pass. Co. v. McDonnell, 43 Md. 534. In the case last cited, which was an action by an infant plaintiff to recover for personal injuries received in a street car accident the defendant offered to prove that the infant plaintiff's father and prochein ami had said, in speaking of the accident, that he did not blame the driver at all, and that the child was injured by a pure accident. The offer was rejected, and in discussing that ruling this court said: "McDonnell, whose declaration was not permitted to go to the jury, was not present when the accident occurred, saw nothing of it, and had no knowledge of the particulars of the accident, further than information derived from others, and any declarations he may have made, must of necessity have been based exclusively upon information derived from others, and were not admissible evidence to affect the interest of, or bind, the plaintiff. The declaration offered was made by a person having no legal interest in the suit before the suit was commenced, and without any knowledge of the transaction, other than what was derived from other persons. Such a declaration stands upon the same footing with declarations made by a person to whom letters of administration are afterwards granted, which are not admissible in evidence against him as administrator." Nor could the fact that on cross-examination she denied having made the statements authorize the introduction of evidence tend prayers were granted, and its first, third, and fifth refused. Before discussing the defendants' granted prayers we will consider the court's action in refusing their first prayer, which was a demurrer to the evidence in the usual form, since the question of whether the appellant was prejudiced by the court's rulings on the remaining prayers depends to some extent upon the correctness of its ruling on that prayer. [3] The testimony shows that while the infant plaintiff, then less than three years old, was being led along one of the public highways of Baltimore city, he was struck and injured by a gate which fell from its place in the defendants' fence because it was insecurely and insufficiently fastened. This conclusion is fairly inferable from the evidence, the truth of which, in this inquiry, we assume. At the time of the accident the boy and the little girl were in the highway and walking along it and by the gate. The girl was holding the boy's hand and was between him and the fence. He was lagging behind her at a distance of about two feet. She had passed the gate and he was in the act of doing so when she heard him scream and found that the gate which an instant before had been in place had fallen on the boy and that he was then beneath it. The gate had not been securely fastened in place for weeks and was described by a witness as "dangerous." It had but one hinge, and that was not fastened to the fence at all, so that the gate was held in place only by a latch or a hook, and when that was not fastened there was nothing whatever to hold it in place except its own weight. Under such circumstances and in the absence of any evidence to show why it fell at that time, it cannot be said that there was no evidence in |