The written instruction given the jury in answer to their inquiry is, as a legal proposition, unexceptionable. To what was said no exception is, or can be successfully, taken. The objection claimed is that this instruction did not, state the rules of law applicable to the evidence with sufficient fullness to preserve the plaintiff's rights, — in short, that the instruction was not sufficiently specific.
The general rule is that where the instructions actually given are correct a verdict will not be set aside because they are not as specific as they might properly have been, when no request has been made for more definite instructions. First Nat'l Bank of Gonic v. Ferguson, 58 N.H. 403,404; Barter v. Wheeler, 49 N.H. 9, 22. The reason of the rule is that a party "should not lie by until after the trial, and then take the exception when it is too late to supply the omission." Moore v. Ross, 11 N.H. 547,557; Matthews v. Clough, 70 N.H. 600.
Hence, if this instruction had been given with the knowledge of counsel, or perhaps had been given in open court in their absence (Rizzoli v. Kelley, 68 N.H. 3), the absence of any request for more specific instructions would render the general exception unavailing. But counsel had no knowledge of the question or answer, and are not in fault. The reason of the rule having failed, the rule cannot be upheld. The practice permitting communication between the judge and jury as to matters of law has been approved "if the rights of the parties are fully secured," because it was thought "the ends of justice are likely to be promoted in this way, while by refusing an answer the rights of the parties might be left in some measure to chance, or an unnecessary hardship imposed upon the jury." Shapley v. White, 6 N.H. 172, 175, 176. Generally, the rights of the parties are preserved by an opportunity to except to the instructions after verdict. Allen v. Aldrich, 29 N.H. 63, 74; Leighton v. Sargent,31 N.H. 119, 137. This practice has been approved in numerous cases since Shapley v. White, supra (1833), and its validity is now too firmly established to be questioned. Rizzoli v. Kelley, 68 N.H. 3; State v. Prescott, 67 N.H. 203, 204; Ahearn v. Mann, 60 N.H. 472, 476; Glines v. Smith, 48 N.H. 259, 260, 271; Page v. Kinsman, 43 N.H. 328, 330; Leighton v. Sargent, 31 N.H. 119, 122, 137; Allen v. Aldrich, 29 N.H. 63, 66, 74; Bassett v. Company, 28 N.H. 438, 444, 458; School District v. Bragdon,23 N.H. 507, 517.
The practice can be sustained, however, only upon the ground that "no prejudice has arisen or can arise to either party." Shapley v. White, supra. Hence it is important, where the instructions are given out of court without the knowledge of counsel, that, as required by the cases cited, the question and answer should be *Page 32 preserved and returned into court for the inspection of counsel, so that the communications "can be excepted to in the same manner as if they had been given in open court." Allen v. Aldrich, 29 N.H. 63, 74. It is equally necessary that the right of exception then given should be as broad as it would in fact have been were the instructions given in open court; and an exception then taken must extend not only to what was said, but to the omission of anything that ought to have been said if any reply is made, — the propriety of any reply being a question of fact. Harvey v. Graham,46 N.H. 175.
The defendants claimed that the accident was the result of the plaintiff's negligence in attempting to cross the track without making any effort to ascertain whether a car was approaching. If were found that the plaintiff negligently went upon the track, he could nevertheless recover if, after his want of care had created the dangerous situation, the defendants by due care could, while the plaintiff could not by like care, have prevented the injury. In other words, if the motorman could, after discovering the plaintiff's. danger, by the exercise of care have prevented the collision, while the plaintiff, after discovery of the approaching car, could not have escaped injury, the defendants' want of care, which, if exercised, would have prevented the injury, was its legal cause, while the plaintiff's negligence was the cause of the danger merely. Wheeler v. Railway, 70 N.H. 607; Gahagan v. Railroad, 70 N.H. 441; McGill v. Granite Co., 70 N.H. 125; Edgerly v. Railroad, 67 N.H. 312; Felch v. Railroad,66 N.H. 318; Nashua Iron and Steel Co. v. Railroad, 62 N.H. 159.
The jury were properly instructed before the case was submitted to them, that the defendants were bound to use every reasonable exertion to stop the car if a traveler were unavoidably or negligently upon the track. The reserved case does not state the fact but, in the absence of any exception to the original charge, it must be assumed that the distinction between negligence as the cause of the danger and negligence as the cause of, or as contributing to, the injury was fully and correctly explained to them. The inquiry of the jury indicates that they did not clearly comprehend the distinction; that some, at least, of the jury understood the charge to mean that, under every view of the facts, the plaintiff, if negligent in going upon the track, could not recover.
The only negligence charged against the plaintiff was his failure to observe the approaching car. The inquiry of the jury, therefore, was whether they had been told that if the plaintiff's position on the track was due to his want of care he could not recover. In a popular sense, the plaintiff's being upon the track was the cause of the injury. If he had not gone on the track there *Page 33 would have been no accident. Such appears to have been the confusion of the jury in Folsom v. Railroad, 68 N.H. 178. In the failure of the jury to comprehend the instructions already given, as exhibited by their question, it is probable that the technical answer given to their inquiry may have led them to understand that the plaintiff's carelessness in going upon the track ended his case. In this situation the inquiry of the jury, if answered at all, called for an explanation of the legal distinction between negligence as the cause of the danger and negligence as the cause of the injury. If suggested by counsel, the principle would have been stated in some form. The instruction having been given during adjournment, without the knowledge of counsel, the exception must be treated as if made to a refusal to state upon request an elementary proposition applicable to the evidence and decisive of the plaintiff's rights. In no other way can the lack of opportunity to request instructions applicable to the evidence and pertinent to the inquiry of the jury be prevented from prejudicing the parties. So considered, the exception must be sustained. If, as is probable, the jury understood from the technical answer without explanation that carelessness of the plaintiff in going upon the track precluded his recovery upon any view of the subsequent acts of the parties, it is clear that there has been a mistrial, because the jury were thereby precluded from considering a ground upon which they may have thought the plaintiff entitled to recover.
Exception sustained: verdict set aside.
BLODGETT, C. J., did not sit: the others concurred.