Curtis v. Boston & Maine Railroad

There was no testimony tending to show the barn door could not be seen from the post office as Shepard testified it could be. Plaintiffs' counsel did not claim that there was. Neither did he contend that the situation was shown to the jury at the view. His position was that it was not. In this he was in accord with the objecting counsel. From the jury's knowledge of the situation to which he appealed and the fact that attention was not called to the situation at the view he sought to draw an inference in opposition to the direct testimony of Shepard. Whether such an inference could be drawn is a question of law.

The legal right of the jury to use the knowledge of one of them, not a witness, as to a material fact in aid of their decision is not raised by the exception but assuming that they could not properly do so (Schmidt v. Ins. Co., 1 Gray 529, 535, 536; Wigmore Ev. s. 1800), counsel's request that they should was an error of law which would not destroy the verdict unless it appeared the error was approved by, the court and made the law of the case. The presumption is that the error was corrected by the instructions. If the defendants had thought the general instructions, that the question at issue must be determined upon the evidence, insufficient, they could have asked for a more definite statement.

In view of the failure of the plaintiffs to raise in the course of the trial the question suggested in argument, the defendants doubtless may have been surprised thereby. In such event if the argument was considered worthy of reply, they would upon application have been given an opportunity to answer it, preserving to the plaintiffs the right of final reply. Mitchell v. Railroad, 68 N.H. 96, 117; Rogers v. Kenrick, 63 N.H. 335, 341.

Exception overruled.

All concurred.