53 A. 736 | N.H. | 1902
1. Exception 1 presents nothing warranting the interposition of this tribunal. The question objected to was asked on cross-examination and, as was expressly stated, for the purpose of discrediting the witness. How far counsel shall be permitted to go in cross-examination for the purpose named, the law leaves to the discretion of the superior court. Gutterson v. Morse,
2. In view of the character of the comment covered by exception 2, and the previous and subsequent course of the trial, we cannot say that it was "so inconsistent with legal fairness of trial as to make it a matter of law that there should be a new trial." Gilman v. Laconia, ante, p. 212; Perkins v. Roberge,
3. The testimony covered by exception 3, that the plaintiff at the time of his injury was one of a party of men and women who had been drinking and were on their way to a road-house "where they expected to get more liquor and have a high time," was competent, in connection with the other evidence in the case, as having *509
some tendency to show that the injury resulted, as contended by the defendants, from the intoxication and carelessness of the plaintiff and his party, instead of from the defective highway, as contended by the plaintiff. It came fairly within the principle, that when the truth of anything is in question and the evidence is conflicting, facts and circumstances having a tendency to show its probability or improbability are competent. Swain v. Cheney,
4. It is not apparent how the plaintiff could have been prejudiced by the comment covered by this exception. It belongs at most to that class of irregularities not so inconsistent with legal fairness as to require the granting of a new trial. Gilman v. Laconia, ante, p. 212, and other authorities cited in connection with exception 2.
5. This exception cannot be sustained, for the reasons stated in overruling exception 3.
6. The court excluded the testimony to which exception 6 relates, instructed the jury not to consider it, and finds that they did not. Furthermore, there is no reason to believe that the evidence improperly influenced the verdict. The exception must therefore be overruled. Goodwin v. Scott,
7. Exceptions 7, 8, 9, and 10 are clearly untenable.
8. The testimony covered by exception 11 had a tendency to show the nature of the expedition and, in connection with other evidence, a bearing upon the probability of due care on the part of the plaintiff. In this view it was competent for the reasons and upon the authorities to which attention was called in considering exception 3. But in any view the exception presents no ground for new trial. Rowell v. Hollis,
9. That part of the argument of the defendants' counsel to the jury to which the plaintiff has excepted was warranted by the evidence and was within the bounds of legitimate advocacy, upon the issue of the plaintiff's contributory negligence.
10. The instruction of the court on the question of intoxication, taken as a whole, was in accordance with the law. Stuart v. Machias Port,
11. The objection taken to the charge of the court in general terms is not sustainable. Reynolds v. Railroad,
Exceptions overruled.
All concurred.