The plaintiffs contend that the decision is based upon an interpretation of the act of 1925 which was suggested for the first time in this court; that the defendant's right to insist upon a directed verdict is limited to the reasons stated in its motion (Puchlopek v. Company, 82 N.H. 440, 441; State v. Isabelle, 80 N.H. 191, 192, and cases cited), and that no reason there assigned can fairly be said to raise the question now held to be determinative of the case.
This makes it necessary to consider in detail the motions for a nonsuit and directed verdict.
The grounds on which a nonsuit was requested were:
"1. Because there is no evidence that the railing in question was not the standard rail erected by the state highway department or approved by it and that the embankment was not sufficiently railed under the statute.
"2. That there is no evidence that there was anything about the railing in question or relating to its condition to put the town upon inquiry prior to the accident.
"3. Because upon all the evidence in the case it conclusively appears that the proximate cause of the accident was the skidding of the plaintiff Cozzi's car upon the ice as it approached the scene of the accident which resulted in the car being out of control at the time that the accident occurred and such skidding was not due to any negligence on the part of the defendant.
"4. Because there is no evidence to show that reasonably prudent men under the circumstances would not have maintained such a railing at the place in question prior to the accident.
"5. Because there is no evidence of negligence on the part of the defendant."
At the close of all the evidence defendant's counsel made the following motion: "We move for a directed verdict, renewing the grounds stated in our motions for a nonsuit, and on the further ground that from the evidence it conclusively appears that the railing in question was erected by the State Highway Department and was the *Page 537 standard railing, and that the embankment was sufficiently railed within the meaning of the statute."
The declaration in each case alleges that the highway at the place where the accident occurred was not "in suitable repair for the travel thereon" by reason of "a dangerous embankment, defectively railed." No reference is made in specific terms to the statute of 1925. But the defendant made clear its reliance upon the provisions of that statute as early in the trial as the cross-examination of the first witness.
Both court and counsel must have understood it to be the defendant's claim, as outlined in the motions, that there was no evidence of a violation of the act of 1925, but that even if the fence did not conform to the requirements of that act, the plaintiffs could not recover, since the skidding of the automobile was the proximate cause of the accident. From the declaration and the context of the motions they must also have understood the term "negligence" as used in the fifth ground of the motion for a nonsuit to mean actionable fault.
While it is true that if specific grounds for a nonsuit are assigned, general ones are waived (St. Laurent v. Railway, 77 N.H. 460, 463), here the specific grounds of the defendant's motion, when taken collectively, amount to an assertion that the plaintiffs have failed to establish a cause of action under the statute of highways as amended by the act of 1925. In such a situation it is difficult to see how the defendant can be held to have waived its right to argue in this court that the act of 1925 created a new standard by which the conduct of the town must be measured.
The plaintiffs now claim that they were "led into a trap" by the defendant's failure to advance this argument at the trial and so lost the opportunity to supply evidence of the strength of the standard fence.
This claim finds no support in the record. Apparently the plaintiffs would have deemed such evidence unnecessary even if the case had been tried on the correct theory. This is indicated by the following extract from the argument of plaintiffs' counsel to the jury: "You don't have to be going very fast on clear ice down hill to skid, and once you get going, you know just as well as anybody else and no expert testimony is necessary for that, that it is almost impossible to get your car under control until it hits something and straightens it out, and if that fence had been a reasonable fence there, even fence posts of that size, not the standard size, in fairly good condition, it would have been sufficient to hold Cozzi's car as it bumped there and he could have straightened out his car and gone right along." *Page 538
The exception to this argument clearly signifies that the defendant was insisting then, as it later insisted in this court, that the strength of a railing of standard size and construction was not a matter of common knowledge but must be proved by evidence.
Later in his argument plaintiffs' counsel expressly disavowed any contention that the town was required to "build a fort" to withstand the impact of motor cars and again urged the jury to find that if the particular fence through which the plaintiffs' car was precipitated had been in proper repair, it would have prevented the accident. And he asked them to draw this conclusion despite the fact that no evidence relating to the strength of such a fence had been introduced.
It is therefore extremely unlikely that evidence of the strength of standard fence would have been supplied even if the defendant had explicitly stated in its motion for a directed verdict that evidence on this point was lacking. At any rate it does not appear that the plaintiffs have been prejudiced as a matter of law. Whether they are entitled to relief on the ground of accident, mistake or misfortune is a question of fact for the superior court. Watkins v. Railroad, 80 N.H. 468; S.C.81 N.H. 363.
Former result affirmed.
BRANCH, J., did not sit: the others concurred. *Page 539