The request for instructions presented as matter of law what was a question of fact. Travelling upon the highway by one
who is blind, or whose vision is defective, or when external things are wholly obscured by darkness, is not negligence in itself. There are other elements to be taken into the account. Sleeper v. Sandown, 52 N.H. 244. Nor was the divergence of the plaintiff's horse from the travelled road, whether by natural instinct, or by the act of the driver, or through inability to see the road by reason of the darkness, the only fact to he considered. The instructions requested would have required the jury to disregard all the circumstances of the case except those included in the requests. No exceptions were taken to the charge, and we do not see that any could have been taken. Whether the plaintiff exercised ordinary care and diligence in travelling upon the highway at the time and in the manner he did, and if not, whether the want of such care and diligence contributed to the injury, were questions of fact to be found by the jury, under proper instructions. Palmer v. Portsmouth, 43 N.H. 265; Woodman v. Nottingham,49 N.H. 387; Norris v. Litchfield, 35 N.H. 271: Stack v. Portsmouth,52 N.H. 221; Sleeper v. Sandown, 52 N.H. 244; State v. Railroad,52 N.H. 528.
Whether the verdict should be set aside as against the evidence, is for the exclusive determination of the judge who tried the case. We should not have considered the evidence, if the request to report it had been complied with. Gamsby v. Columbia, ante, p. 60; Fuller v. Bailey, ante, p. 71; Lefavor v. Smith, ante, p. 125; Kelley v. Woodward, ante, p. 153.
The referee's report was evidence for the jury. Deverson v. Railroad, ante, p. 129; Smith v. Fellows, ante, p. 169; Garland v. Towne, ante, p. 187.
Exceptions overruled.
FOSTER and BINGHAM, JJ., did not sit.