Leavitt v. New England Telephone & Telegraph Co. ( 1903 )

Presumably, the jury were correctly instructed in regard to the law applicable to the case, as no exception was taken to the charge. If the evidence excepted to by the plaintiff was not relevant to the issue presented and tried by the jury under proper instructions, the verdict will not be disturbed unless it was also prejudicial. State v. Saidell,70 N.H. 174; Marsh v. Insurance Co. 71 N.H. 253. The plaintiff's claim was that the defendant, having dug up the street, was liable as a matter of law for injuries caused thereby, without regard to the fact that the city may have done a part of the work of filling up the trench. If the court did not instruct the jury in accordance with this theory, it was the privilege of the plaintiff to protect his rights by an exception to the charge; not having done so, he cannot insist that reversible error was committed by the admission of evidence which upon that theory was merely irrelevant. It does not appear how it could have been legally prejudicial to the plaintiff, since if it was irrelevant it was the duty of the court to so instruct the jury. If the exception relates to the form of the evidence, the ground of the objection should have been stated. Bundy v. Hyde, 50 N.H. 116, 122; Carter v. Beals, 44 N.H. 408, 411.

The claim that the remarks of the defendant's counsel in argument furnish ground for setting aside the verdict is untenable. So far as they 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. Mitchell v. Railroad,68 N.H. 96, 117.

Exceptions overruled.

All concurred.