Burke v. Railroad , 82 N.H. 350 ( 1926 )

I. The plaintiffs' motion is based upon the proposition that it has not been the practice to set aside a verdict when requested instructions, which were refused, were not correct statements of the law, and the exception was to the refusal only. The soundness of this statement of the law is self-evident. These cases present other questions.

The defendant requested instructions as to the law governing the rights and duties of adjoining landowners as to surface water. The requests were variously framed, and it may be assumed that none of them contained a full and correct statement of the law. Some of them were defective only in that a further element should have been added.

The general subject thus brought to the attention of the court was material to the decision of the cases. No instructions whatever were given concerning it.

It has always been understood here that the duty to fully and correctly instruct the jury as to the law applicable to the case rests upon the court. The presiding justice should, of his own motion, give a proper charge. Maxwell v. Company, 206 Mass. 197; Donahue v. Company, 56 Vt. 374. "The presumption is that such instructions as were proper were given." Hill v. Carr, 78 N.H. 458, 461. "It is the duty of the court to instruct the jury upon the law." Mitchell v. Railroad, 68 N.H. 96, 117. To the same effect are, Nutter v. Pearl, 71 N.H. 247; Leavitt v. Company, 72 N.H. 290; Haskell v. Railway, 73 N.H. 587; Trafton v. Osgood, 74 N.H. 98.

But the reciprocal duty of counsel (Gardner v. Company, 79 N.H. 452, 457, and cases cited) requires that he call the attention of the court to omissions from the charge in season for the correction of the error. He may not lie by and rely upon a general exception to the charge as given to raise a question relating to a failure to charge. Edgerly v. Railroad,67 N.H. 312, 317, and cases cited; Emery v. Railroad, 67 N.H. 434; Pitman v. Merriman, 80 N.H. 295, 299, and cases cited. When, however, this duty of counsel has been performed, and the matter is thus brought to the attention of the presiding justice, an exception lies if there is a failure to charge. Tuttle v. Dodge, 80 N.H. 304, 316, and cases cited.

Whether preferring specific requests to charge upon a subject is a sufficient presentation of the matter to the presiding justice, regardless of errors in the proffered instructions, and whether an exception to the denial of the requests raises the issue of failure to charge at all, are new questions in this jurisdiction.

Cases are to be found asserting that such an exception is unavailing, but they are largely from jurisdictions where the rule is that it is the primary duty of counsel to furnish the instructions desired, and where the court does not charge at all, except in the language supplied by requests. 1 Black, Inst. Juries, 356. It is evident that such precedents are of no value here.

The precise questions here presented arose in a Massachusetts case, and it was held that the exception was well taken. The issue involved the defence of advice of counsel in a suit for malicious prosecution. "Of course, to make the advice of counsel a defence, the person consulting him must act in good faith, and he must make a full and honest disclosure of all the material facts within his knowledge and belief. If the judge had added these elements to the request, the defendant would have had no ground of exception, but it seems to us that it would be too narrow and technical a view to hold that this exception must be overruled because these elements were not added. The attention of the judge was called to the substantive defence of advice of counsel, and he should have given appropriate instructions upon the subject." Black v. Buckingham, 174 Mass. 102, 107.

The foregoing decision carries out the spirit of our rule concerning the duties of court and counsel. While those duties are reciprocal, the ultimate duty to state the law fully and correctly rests upon the court. The duty of counsel is to present the matter so that there may be no oversight. Having done this, and having excepted as in this case, he fairly raises the question of the propriety of a refusal to instruct at all.

There is nothing in the cases cited by counsel tending to contradict this theory. In our cases holding that an exception to a refusal to give a requested and incorrect instruction must be overruled (Ordway v. Sanders,58 N.H. 132; Leavitt v. Fletcher, 60 N.H. 182; Smith v. Bank, 72 N.H. 4; Lockwood v. Company, 76 N.H. 530; Jones v. Stone, 78 N.H. 504; Williams v. Railroad, ante, 253) the judges gave other instructions upon the subject, or it does not appear that they did not do so. That is, it does not appear in any of them that the judge failed to perform the duty whereto he was moved. He instructed upon the subject presented. The exceptions were overruled because the moving party's requests were erroneous and his presentation of the subject was not ignored by the court. If he desires to question the correctness of instructions given under such circumstances, he should except thereto, as in the case of instructions given entirely on the court's initiative.

II. The defendant's motion presents no questions that were not examined before the former opinion was announced. There was positive evidence from the witness Hancox that the water would have come down substantially where and as it did, if there had been no highway.

The argument against the rules here established touching the care of surface water and the duty to anticipate dangers to third persons to whom the defendant owed a duty to use care, does not convince us that either of those rules should be abandoned or modified.

Former result affirmed.

All concurred.