Decided June 1880.
Whether a case should be taken from the jury because counsel, in their presence, offer testimony which is not admitted, is a question of fact to be determined at the trial term. A town is liable for damages happening, by reason of a defective highway, to a person illegally travelling on Sunday, if the illegality of his act does not contribute to the accident.
CASE, for injuries received from a defective highway. The plaintiff was unable to attend the trial, and her motion that the jury be allowed to go to her house and see her was denied. Afterwards, when the jury were near the plaintiff's house viewing the highway, by order of the court, her counsel in the presence of the jury proposed that they should go into the house and see her if the defendants' counsel would consent. The defendants' counsel objected, and the jury did not see her. The defendants moved that the case be taken from the jury, and continued at the plaintiff's expense. The accident occurred on Sunday. The evidence tended to show that the plaintiff's husband had a field of grain some distance from the house, partly unfenced, and that one of her sons, who was going to the field with a carriage to see if the cattle had injured the grain, invited her to accompany him, which she did. While on the way she received the injure complained of. The defendants requested the court to instruct the jury that if the plaintiff was not travelling as a work of necessity or mercy, she could not recover. Subject to exception, the request was denied. Verdict for the plaintiff.
W. H. Heywood and Ladd Fletcher, for the defendants.
Ray, Drew Jordan, for the plaintiff.
Whether the case should have been taken from the jury on account of the offer made by counsel, was a question of fact to be determined at the trial term. Zollar v. Janvrin, 47 N.H. 324. Although the plaintiff violated the law by travelling on Sunday, she might recover if the illegality of the act did not contribute to the accident. Corey v. Bath, 35 N.H. 530, 541; Sutton v. Wauwatosa, 29 Wis. 21; Sewell v. Webster, 59 N.H. 586.
Judgment on the verdict.
STANLEY, J., did not sit: the others concurred.