Nadeau v. Sawyer , 73 N.H. 70 ( 1904 )

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It was incumbent upon the plaintiff to show that she used ordinary care to avoid being injured. If the statute read does not prescribe what shall constitute such care when a traveler is notified that another person who is traveling in the same direction desires to pass him, it is evidence relevant to that issue. State v. Railroad, 58 N.H. 408, 410; Clark v. Railroad, 64 N.H. 323; Evans v. Railroad, 66 N.H. 194; Brember v. Jones,67 N.H. 374; Bly v. Railway, 67 N.H. 474; Smith v. Railway, 69 N.H. 504; Lane v. Concord, 70 N.H. 485; Bresnehan v. Gove, 71 N.H. 236.

If the portion of the charge excepted to contains no legal error, the verdict will not be set aside merely because the instructions were not as full and specific as they properly might have been, unless the excepting party requested more definite instructions. Barter v. Wheeler, 49 N.H. 9,22; First Nat'l Bank v. Ferguson, 58 N.H. 403, 404; Dow v. Merrill,65 N.H. 107, 110; Pitman v. Mauran, 69 N.H. 230; Parkinson v. Railway,71 N.H. 28, 31. In this case the court gave all the instructions the plaintiff requested. If she thought more definite ones were necessary to enable the jury to apply the statute to the facts of the case, she should have asked the court to give them. She cannot now be heard to complain because instructions for which she did not ask were not given. Matthews v. Clough, 70 N.H. 600.

It is unnecessary to consider whether the instructions which were given at the plaintiff's request were inconsistent with the *Page 72 provisions of the statute which was read to the jury; for if they were, the plaintiff is in no position to take advantage of the error. The only questions of law which can be considered on a motion to set aside a verdict are such as are raised by exceptions taken during the trial. No exception was taken because the instructions were conflicting; and all exceptions to the charge must be taken before the jury retire. Rule of Court, No. 47,71 N.H. 683; Moore v. Ross, 11 N.H. 547, 557; Haynes v. Thom, 28 N.H. 386,389; Boyce v. Railroad, 43 N.H. 627; Cutler v. Welsh, 43 N.H. 497; Carter v. Beals, 44 N.H. 408; Bundy v. Hyde, 50 N.H. 116, 122; State v. Gorham,55 N.H. 152, 169; First Nat'l Bank v. Ferguson, 58 N.H. 403, 404; Dow v. Merrill, 65 N.H. 107, 110; State v. Gale, 69 N.H. 667; Pitman v. Mauran,69 N.H. 230; Parsons v. Jameson, 70 N.H. 625.

Exception overruled.

All concurred.