Walker v. Railroad , 71 N.H. 271 ( 1902 )

The requested instruction was, so far as applicable to the evidence, covered by the instructions given. Upon the question of damages for future physical and mental pain, the jury were limited by the instructions given to such suffering as was shown to be the direct, natural, and probable result of the defendants' fault. When the legal principle governing a case is fully stated in general terms, it is not error of law for the court to refuse instructions upon its application to particular evidence. The substance of the requested charge having been given, it is no ground of exception that it was not repeated, or that a particular form of expression was not used. Rublee v. Belmont, 62 N.H. 365; Chase v. Chase, 66 N.H. 588,592. There was evidence that the plaintiff was suffering from partial mental disability. If as the result of mental disability induced by the defendants' fault the plaintiff suffered from apprehension of insanity, such suffering was an element of her damages. The instruction, if given in the form requested, would therefore have been erroneous.

The argument in support of the exception is founded upon the meaning of the word "may" in the following statement in the case: "There was evidence that the plaintiff is suffering from partial mental disability induced by the shock, and that this partial disability may become total." Whether the word was used in the strict sense claimed, meaning that the evidence did not tend to prove a probability but only a possibility of total insanity, is at least open to serious doubt. Whether the meaning attached by the defendants is the one intended is not material, because their contention as to the proper rule upon their understanding of the word is fully covered by the general instruction limiting the consideration of the jury to such future suffering as the plaintiff may endure as the probable result of the injury. It could fairly be inferred that in stating the evidence the court used the word "may" with reference to the connection in which it was used in the charge. However this may be, this court is not obliged to resort to the study of derivations or definitions, or to employ the principles of judicial construction to ascertain the meaning of a case transferred. If there is doubt, an amendment of the case furnishes a convenient and certain solution of the difficulty.

As the defendants, instead of moving to reject the voluntary incompetent statement of the plaintiff's sister, called witnesses to dispute it, and thereby made an issue of her credibility, it was proper for counsel to discuss any competent evidence in the case bearing upon the question; but the assertion as a fact by the plaintiff's counsel in his closing address to the jury, that the engineer, if he had been asked, would have said that he heard the statement of which the plaintiff's sister had testified, was incompetent testimony which, introduced under exception, is fatal to the verdict. Concord etc. Co. v. Clough, 70 N.H. 627; Bullard v. Railroad, 64 N.H. 27. If, instead of stating to the jury as a fact what the engineer would have said if inquired of, counsel asked the jury to infer from the fact that the defendants' counsel did not ask the engineer this question, that he did not ask it because he knew the answer would be as stated, the argument is within the limits of legitimate advocacy. Mitchell v. Railroad, 68 N.H. 96, 117.

From the case it may be inferred that the exception covers everything said by counsel which is reported, and that the remark in question was not a request for an inference by the jury, but a statement of a fact. Whether the statement was made in one way or the other, and whether all that is reported was said subject to exception, are questions of fact for the trial court. Edwards v. Tilton Mills, 70 N.H. 574, 576. Legal fairness of trial requires that counsel apparently trespassing upon the rule prohibiting the introduction of unsworn testimony in argument should assume the burden of establishing his freedom from fault. An amendment of the case having been procured which establishes that the suggestion of counsel to which objection was taken was understood to be a request to the jury to infer from the facts proved what the testimony of the engineer would have been, the argument is not objectionable. Mitchell v. Railroad, supra.

Exceptions overruled.

WALKER, J., did not sit: the others concurred.