59 A. 944 | N.H. | 1905
The defendant's motion for a nonsuit was properly denied unless it appears from the case that there was no sufficient evidence from which the jury could find that there was a dangerous, unrailed embankment in the highway, which was the proximate cause of the plaintiff's injury. Upon this point the *136
defendant argues that the decision of the case upon its former transfer (
Nor is a new situation of the case presented by the fact that the embankment was in the wrought portion of the way; for that was the fact in the former case. The evidence there tended to show that the frightened horses carried "the right-hand wheels of the cart about two feet outside of the right-hand wheel rut and over the east side of the highway, just outside of the two-inch drop . . . at the outer edge of the wrought part of the highway, causing the cart to be overturned and the plaintiff to be thrown *137
out and seriously injured." It is evident that the declivity that caused the upsetting of the carriage, as described in the former case, was in the wrought portion of the highway near the easterly part thereof; and the same appears to be the fact in the present transfer. Whether, from the evidence relating to the condition of the road at the time of the accident and the material facts disclosed by the view, reasonable men might find that there was a dangerous embankment in the highway which was the cause of the plaintiff's injury and which might have been rendered reasonably safe by being railed, is a question of fact whose answer in the negative is not so evident as to preclude its submission to the jury. This matter was fully considered in the former opinion; and the facts now presented, if not identical with those then before the court, are not so materially different as to require a modification or new discussion of the legal principles then announced. Amoskeag Mfg. Co. v. Head,
As to the remarks of the plaintiff's counsel in his argument to the jury, it is not claimed that they were not supported by the evidence, but that they were calculated to give the jury a wrong impression of the law governing the defendant's liability. But the exception cannot be sustained; for so far as the remarks "were statements of fact, they were supported by the evidence; and so far as they were statements of law, they must be held, if erroneous, to have been corrected by the instructions to the jury." Leavitt v. Telephone Co.
The defendant excepted to an instruction in substance that if the plaintiff's injuries were greatly aggravated by the unskillfulness of the surgeons who attended her, that fact would not relieve the town unless it appeared that she was negligent in employing them. This was in accordance with the law as announced in this state (Tuttle v. Farmington,
Exceptions overruled: judgment on the verdict.
All concurred. *138