Opinion
Decided December, 1882.
When the legal principle governing a case is fully stated in general instructions given to the jury, and each party has an opportunity in argument to apply it to his view of the facts, it is not error of law for the court to refuse to give instructions on its application to particular evidence.
CASE, for injury upon a highway. Verdict for the plaintiff The defect complained of was the want of a railing. The jury were instructed that if they found the highway, at the time and p]ace of the accident, was reasonably safe and suitable for the travel thereon, or if not, that the defects and insufficiencies therein did not cause the accident, their verdict would be for the defendants; but if they found it was not reasonably safe and suitable for the travel thereon, and that the defects and insufficiencies caused the accident, they would then take up the question whether the plaintiff was in fault. The defendants excepted to the refusal of the court to give the following instructions: "If the jury find that the horse did not fall in consequence of any fault of the town, but that the highway was defective by reason of the lack of a suitable railing and the plaintiff was injured thereby, and is not precluded from recovering a verdict by contributory negligence (according to the definition of contributory negligence the court will give), then the jury must determine whether the plaintiff would have been injured if there had been a suitable railing. And if they find that her injuries would have been as great, or greater, had there been a suitable railing, then the plaintiff cannot recover."
Pike Parsons and E. A. Hibbard, for the defendants.
Chase Streeter and T. J. Whipple, for the plaintiff.
The legal principle governing the first point of the case was fully stated in the general instructions. Each party had an opportunity in argument to apply it to his view of the facts, and it was not error of law for the court to refuse to give instructions on its application to particular evidence. P. M. L. Ins. Co. v. Clark, 59 N.H. 345; Fogg v. Moulton, 59 N.H. 499; Ordway v. Sanders, 58 N.H. 132; Spalding v. Brooks, 58 N.H. 224; White v. Jordan, 27 Me. 370; Johnson v. Knowlton, 35 Me. 467; Sawyer v. Steamboat Co., 46 Me. 400; Darby v. Hayford; 56 Me. 246; Thornton v. Thornton, 39 Vt. 122; Whitcomb v. Fairlee, 43 Vt. 671; Durgin v. Danville, 47 Vt. 95. The substance of the requested charge was given, and it is no ground of exception that it was not repeated, or that a particular form of expression was not used. Walcott v. Keith, 22 N.H. 197; Tucker v. Peaslee, 36 N.H. 167, 178.
Judgment on the verdict.
CARPENTER, J., did not sit: the others concurred.