Girard v. Boston & Maine Railroad , 78 N.H. 406 ( 1917 )

The statement of counsel to which objection was taken was a correct statement of the law as to the abstract right of the parties. Gahagan v. Railroad, 70 N.H. 441, 443. Whether the law as to the care required to be exercised by the parties in the exercise of their common and equal right was correctly stated by counsel in argument does not appear. In the absence of further exception it cannot be inferred erroneous use was made of the abstract principle stated, or that the court failed to give such instructions as would enable the jury to apply the law. Counsel made no statement of fact and did not mis-state the law. The sentence to which special exception is taken, "We have not yet reached the point, — we may sometime, — but we have not yet reached the point where everybody has got to stand back when the Boston Maine railroad runs its trains," was a forceful statement of the legal proposition that a highway traveler is not necessarily in fault who is on a grade crossing, when the railroad attempts to occupy it.

If for any reason developed in the course of the trial the form of expression used appeared likely unfairly to influence the jury, the presiding justice could have corrected such tendency. Sanders v. Railroad,77 N.H. 381, 383; Hoxie v. Walker, 75 N.H. 308, 310. It cannot be held as matter of law that the expression created such a prejudice or so called attention to existing prejudices as necessarily to render the trial unfair. If in fact the verdict is the result of prejudice and not sustainable upon the evidence, relief must be sought in the superior court.

Exception overruled.

All concurred.