Grossbard v. Railway , 78 N.H. 496 ( 1917 )

The defendants say that counsel told the jury that he was a reasonable man and as such could see no negligence in the plaintiff's conduct. That is, they say counsel was expressing an opinion, was testifying, not arguing. Fellows v. Company, 76 N.H. 457.

But counsel did not say he was a reasonable man, but only that he hoped he was. Whether he was such and whether as such he could see negligence in the evidence, he left to the jury. The only definite statement was, "If there is the least iota of evidence of Mr. Grossbard's negligence, I don't see it." The existence of negligence is a fact to be inferred from the facts proved. Whether from the facts proved a particular conclusion may or may not be drawn is a question of law. Mitchell v. Railroad, 68 N.H. 96,117. The contention that there was no evidence from which an inference of negligence could be drawn was not a statement of a fact not in proof, but a claim as to the law or at most a contention as to the evidence. One purpose of argument is to aid the jury in drawing inferences from the facts proved. Facts that can be inferred from the facts proved, may be stated as established. Kambour v. Railroad, 77 N.H. 33, 52. Counsel may properly state his view of the effect of the evidence. Lane v. Manchester Mills,75 N.H. 102, 107. If the evidence conclusively established the plaintiff's want of care, it may be safely presumed the case would not be here in its present shape. From this it follows that the contention that due care on the part of the plaintiff could be inferred from the evidence was not erroneous as matter of law, while there is nothing in the case showing that the more sweeping contention that there was no evidence of fault in the plaintiff was not correct in law and in fact. If legally erroneous, the presumption is, the error was corrected by suitable instructions. Keefe v. Railroad, ante, 139, 140. As the statement objected to does not appear erroneous in law or in fact, the verdict is not affected thereby.

The second statement was in accord with the evidence. Whether the plaintiff, having received the injury he claimed, would ultimately recover was a point as to which the defendants' experts might have given their opinion although they claimed no such injury existed. The reason suggested for failure to inquire of them on this point was legitimate argument. The defendants' answer might be that no such inquiry was made because the plaintiff was not injured as claimed and no question of recovery was involved. If the defendants did not discuss this point and were surprised by the argument, opportunity would have been given them to reply if justice required. Curtis v. Railroad, ante, 116; Rogers v. Kenrick, 63 N.H. 335.

But inquiry as to the ultimate recovery of the plaintiff, if injured as claimed, might have raised a doubt as to the certainty of the belief that there was no injury. Having elected the ground upon which to place their defense and chosen the manner of presenting it, the defendants cannot object to inferences legitimately deducible from the position in which they left it.

Exceptions overruled.

All concurred.