The insufficiency or weakness of the car stakes, which was the immediate cause of the plaintiff's injury, was occasioned by the derailment of the cars; and hence the material question for the jury was, whether such insufficiency or weakness was due to the defendants' want of ordinary care. Upon that question the cause of the derailment was legitimate evidence; and the jury having found upon such evidence, under instructions to which no exception was taken, that the cause was the defendants' defective switch, the switch is to be regarded as the legal cause of the plaintiff's injury. "Whenever the question of remote or proximate cause is raised, it becomes a mixed question of law and fact, to be submitted to the jury under proper instructions." Stark v. Lancaster, 57 N.H. 88, 93, and cases cited; Merrill v. Claremont, 58 N.H. 468.

The appeal of the plaintiff's counsel to the jury not to be "niggardly" in the assessment of his client's damages because they *Page 382 might sometime appreciate niggardliness through personal experience, was not so inconsistent with legal fairness of trial as to make it a matter of law that there should be a new trial.

Exceptions overruled.

CARPENTER and CHASE, JJ., did not sit: the others concurred.