Whether justice and convenience required separate trials was a question of fact determined by the ruling of the presiding justice. Eames v. Stevens, 26 N.H. 117, 121. *Page 368
The Boston Maine Railroad having been discharged by a verdict in their favor, to the direction of which by the court no exception appears to have been taken, the only question is whether, upon the facts stated, the verdict found by the jury against the Concord Montreal Railroad should stand. As the case is presented to us, the Concord Montreal Railroad are the sole defendants.
It appears that the plaintiff, a locomotive fireman in the employ of the defendants, was injured while in the course of his duty because of a defect in the track, as he alleges, over which, by direction of his employers, the locomotive upon which he worked was passing. The track claimed to be defective was not a part of the defendants' railroad, but was owned and kept in repair by another railroad corporation which had exclusive control over it. The plaintiff knew these facts. The use of this track by the defendants was rightful, but the precise terms upon which they enjoyed such use did not appear. At the trial the defendant' motion that a verdict be ordered for them was denied. The first question considered under the defendants' exception to the denial of this motion is whether the fact that the alleged defective track was neither owned, managed, nor kept in repair by the defendants, to the plaintiff's knowledge, relieves them of liability for non-performance of the master's duty to provide suitable and safe appliances for the use of the servants in his employment.
"This duty may be, and in case the employer is a corporation must always be, discharged by agents and servants, and the agent or servant charged with its performance, whatever his rank of service may be, stands in the place of the employer, who thereby becomes responsible for his acts and chargeable with the negligence of such agent or servant." Jaques v. Company, 66 N.H. 482, 484; Pierce R. R. 369. As the employer is not discharged by delegation this duty to a servant or a number of servants, the delegation of the duty to a corporation as servant or agent would not relieve him. What the contract for the use of the Boston Maine track by the defendants was, is immaterial. Neither road, by agreement with the other, could relieve the other of any liability as to third persons which the law imposes. Under whatever names they were styled in their agreement, if there was one, the undisputed fact of the rightful use by the defendants of a portion of the Boston Maine tracks, cared for and repaired by the Boston Maine, established that the Boston Maine were the agency employed by the defendants in the performance of their duty of furnishing a safe and suitable track for their employees. Having either by express agreement or by permissive use of the Boston Maine track employed that corporation as their agent in the performance of *Page 369 their master's duty, the defendants thereby become responsible for the acts and chargeable with the negligence of such agent; and as the corporation thus made the defendants' agent and servant could act only through their agents and servants, the defendants became responsible for the acts and chargeable with the negligence of the individual employees of that corporation, who were personally charged with the duty of inspection and repair owed by the defendants to their servants.
Murch v. Railroad, 29 N.H. 9, was an action by a passenger of the Northern Railroad to recover for injuries alleged to have resulted to him from a defect in the track of the Concord Railroad, of which, at the point and time of the alleged injury, the Northern Railroad was in permissive use. In the decision of the questions thereby arising this court said (p. 35): "By using the railroad of another corporation as a part of their track, whether by contract or mere permission, they [the Northern] would ordinarily, for many purposes, make it their own, and would assume toward those whom they had agreed to receive as passengers all the duties resulting from that relation as to the road; and if accident resulted to such passengers from any failure of duty of the owners of the road, for which they would be responsible if the road was their own, their remedy over would be against the owners."
In that case the plaintiff's claim against the Northern Railroad arose from his contract of carriage. In the present, the plaintiff relies upon the obligations implied in his contract of employment. Fifield v. Railroad,42 N.H. 225. Though the requirements of the contract in the case of a passenger and an employee differ in degree, the principle upon which the claim of each is founded is the same, — the failure of the other party to the contract to exercise such care is demanded by the relation mutually assumed. As stated by Knowlton, J., in Engel v. Railroad, 160 Mass. 260,263: "The duty of a railroad corporation to furnish for its employees safe tracks, cars, locomotive engines, and other machinery, tools, and appliances with which its business is to be carried on, is similar in kind to its duty to passengers in these respects, although the degree of care required is less. In either case, its duty is the same when the tracks . . . are hired, or used under a license from others, as when they are owned by the employer." Spaulding v. Granite Co., 159 Mass. 587; Wisconsin etc. R. R. v. Ross, 142 Ill. 9; Stetler v. Railway, 46 Wis. 497, — S.C.,49 Wis. 609; Little Rock etc. R'y v. Cagle, 53 Ark. 347; Smith v. Railroad, 18 Fed. Rep. 304.
It is suggested that since the defendants' trains were rightfully using the Boston Maine tracks that corporation owed to the defendants and their servants the duty of maintaining the track in *Page 370 a reasonably safe and suitable condition for use — a duty arising not out of contract, nor from the relation of master and servant, but which the law imposed upon the grounds of public safety. It may be assumed that this claim correctly states the law. Pierce R. R. 274; Sawyer v. Railroad,27 Vt. 370; Merrill v. Railroad, 54 Vt. 200; Snow v. Railroad, 8 Allen 441; Robertson v. Railroad, 160 Mass. 191; Nugent v. Railroad, 80 Me. 62. But the liability of the owner of the track, if established, does not relieve the defendants of their master's duty. "In many instances several parties may be liable in law to the person injured, while as between themselves some of them are not wrongdoers at all." Nashua Iron and Steel Co. v. Railroad, 62 N.H. 159, 160. As the case now stands there is no question of joint liability. The Concord Montreal are the sole defendants. That parties are not jointly liable for an injury, because not jointly negligent, does not establish that they are not severally liable. Mulchey v. Society, 125 Mass. 487; Parsons v. Winchell, 5 Cush. 592; Shearm Red. Neg., ss. 244, 248; Busw. Pers. Inj., s. 31. That the parties are not joint tort-feasors so as to be jointly liable in trespass does not establish that each may not be a wrongdoer as to the party injured. One who is liable for an injury may recover of another wrongdoer the sums he has been compelled to pay by the latter's negligence, if as to the latter he is without fault. Nashua Iron and Steel Co. v. Railroad, supra; Old Colony R. R. v. Slavens,148 Mass. 363. Whether under the circumstances there would be a right of recovery of one corporation from the other, it is not necessary to inquire. It is sufficient that such right, if existent, does not affect the plaintiff. The defendants' breach of duty for which the plaintiff seeks to recover is severable and distinct from the breach of duty for which it is suggested the Boston Maine might be liable to him. The wrong of one does not excuse or justify the wrong of the other.
It is also suggested that the plaintiff assumed the risk of running over a track owned by another railroad, and which he saw was repaired by the employees of that corporation and not by the employees of the defendants. That the servant assumes the risks ordinarily incident to his service, and also the special hazards arising from the master's peculiar methods which the servant knows and of which due care would inform him, is settled. But there was no evidence tending to show that the plaintiff knew or ought to have known the track was defective, or that the owners' employees were negligent in their care of it. He did not know, and it does not appear conclusively as matter of law that he ought to have known, that the defendants furnished him an unsafe track; therefore he did not assume the risk of such a track. The extent of his knowledge was that the defendants provided a track *Page 371 through some arrangement made with the owners of the track. His knowledge that the Boston Maine employees repaired the track and that the defendants did not, was not an assumption of the risk of negligence of the persons doing that work. In Jaques v. Company, supra, the plaintiff knew that the loom-fixer, Burke, was employed to repair her loom. Her knowledge of Burke's employment was not an assumption of the risk of his negligence. Mere knowledge by the servant of the persons or agencies employed by the master to perform the master's personal duty toward him is not an assumption of the risk of negligence by such particular persons or agencies. If it were, the master's personal liability would be at an end.
As it is not claimed that Boston Maine tracks generally were so unsafe, and their employees so habitually negligent in the repair them, as to present a special danger in running upon the tracks of that corporation, or that there was some peculiar hazard in running a Concord Montreal engine on a Boston Maine track, of which danger or hazard the plaintiff knew or ought to have known, he is not chargeable with the assumption of the risk of the track by his knowledge that the track was owned and controlled by the Boston Maine. Whether he understood, or whether in fact, the Concord Montreal by employees of their own inspected the track, or whether the defendants relied upon the inspection made by the employees of the Boston Maine, is immaterial. The Concord Montreal could make such inspection only through agents or servants. Whether it employed inspectors directly or through the agency of the Boston Maine, whether the actual inspectors were carried on the defendants' pay-roll or whether the defendants paid for their services in the adjustment made for the use of the track in accordance with or in the absence of prior contract, or whether nothing was paid for the use of the track, the actual inspectors, whether directly in the employ of the one corporation or the other, were the agents adopted by the defendants for the performance of their master's duty, and for their negligence the defendants are responsible. Wabash etc. R'y v. Peyton,106 Ill. 534, 540.
The remaining ground urged in the support of the defendants' exceptions to the denial of their motions for a nonsuit and a verdict does not call for extensive consideration. It cannot be said, matter of law, that the testimony of the plaintiff and the four witnesses called by him as to the condition of the track and rotten ties disclosed at the derailment is untrue. Nor, conceding the truth of this testimony, can it be said that reasonable men might not infer therefrom that the defective track caused the accident, and that the defective conditions existing could have been *Page 372 discovered by reasonable care in inspection before the injury. Therefore, the motion for a nonsuit was properly denied. The defendants' evidence did not alter the situation. It did not furnish an uncontradicted answer to the plaintiff's case, assuming the plaintiff's evidence to be true, but answered the plaintiff's case by contradicting it. The defendants' case was that there were no rotten ties, that the track was in good condition, and that the accident was due solely to the negligence of the engineer in running at excessive speed upon the cross-over. Which party was entitled to the verdict depended upon the weight of the evidence. Upon this question our impressions are not material. The weight of evidence is for the jury and not for the court. Abbott v. Railroad, 69 N.H. 176. The evidence of the railroad employees that they inspected the track and discovered no defect was merely an answer to the testimony of the plaintiff's witnesses as to the facts as they found them and to the inference which might be drawn from the condition described by them, that there was no efficient inspection because the defect was not discovered and remedied before the accident. It was for the jury to say which contention was true. As the case contains substantial evidence of some weight in support of the plaintiff's contentions, it was properly submitted to the jury. The exceptions to the denial of the motions for a nonsuit and a verdict are overruled.
The remaining exceptions relate to the argument of counsel. The limit of the privilege of counsel in legitimate advocacy in behalf of his client has been thoroughly considered by the court in numerous cases of comparatively recent date. The present case does not raise any new question, but in view of the repeated presentation of the question it is thought that a brief reference to the application of these principles which has been made may be of use.
The following statements were held improper and verdicts obtained by the counsel making them were set aside, except where a finding was obtained from the trial court that the error had been cured by withdrawal of the objectionable remarks and that the verdict was not influenced thereby.
In Greenfield v. Kennett, 69 N.H. 419, counsel for the plaintiff said he "should be willing to try this case before a jury composed of parties with whom the defendant had dealt." Perkins v. Burley, 64 N.H. 524, presented a similar remark. Counsel said in argument to the jury that if they knew how the plaintiff and his brother were regarded in the vicinity in which they lived he would be willing to submit the case without argument.
In Perkins v. Roberge, 69 N.H. 171, counsel said in argument: "This is a pretty serious matter when a man testifies to what is not true in a matter of as great importance as this, and I don't *Page 373 want him or his counsel either to say that he did not understand the question." This remark was considered reprehensible, but to afford no ground for setting aside the verdict which had been found in a trial by the court without a jury.
In Shute v. Company, 69 N.H. 210, the closing argument of the plaintiff's counsel, that the defendants "were so anxious for production that they took down remnants of the pulley while the girl lay bleeding upon the floor," contained no statement of fact which the evidence did not tend to prove, and was legitimate.
In Pritchard v. Austin, 69 N.H. 367, the objectionable remark of counsel having been withdrawn and an affirmative finding made by the presiding justice that the jury were not influenced thereby, the exception taken to the remark made was overruled.
In Monroe v. Lumber Co., 68 N.H. 89, counsel stated to the jury that the statements made by a witness in a deposition which was in evidence were true and his testimony on the stand false. It was said: "Nobody can reasonably doubt the legitimacy of such an argument." As to another objection claimed in the same case, it was said: "There is no finding . . . that the alleged improper argument . . . was in fact made, nor is any exception allowed on this subject; consequently there is nothing which can now be considered."
In Heald v. Railroad, 68 N.H. 49, counsel said, in effect, that the defendants had tolerated a dangerous practice of lowering gates at the crossing "for all this time," meaning apparently for a long time, when there was evidence of such practice at the time of the accident only.
In Robertson v. Madison, 67 N.H. 205, counsel stated in argument that the testimony of a witness was different from what it was upon a former trial. There was no evidence as to his testimony upon a previous trial.
In Jordan v. Wallace, 67 N.H. 175, the defendant's counsel said the plaintiff: "I don't believe that he ever lived an honest hour in his life, when he was not either plotting and planning to beat somebody individually, or to go into bankruptcy and beat everybody collectively."
In Noble v. Portsmouth, 67 N.H. 183, counsel said: "When people get $1,200 or $1,500 for a fracture, is $3,000 too much in this case?"
In Bullard v. Railroad, 64 N.H. 27, the defendants' counsel commented on the fact that one of the plaintiff's physicians had not been called to testify. The plaintiff's counsel said in reply that the physician had not been called because he had not examined the plaintiff.
In Cross v. Grant, 62 N.H. 675, counsel stated that *Page 374 there were facts to which one of the plaintiff's witnesses did not testify because the witness' knowledge of them was not known to the plaintiff until after she had closed her case. He also stated what a certain witness would have testified if recalled, and attempted to repeat and comment upon evidence that had been excluded.
In Hilliard v. Beattie, 59 N.H. 462, counsel commented in his opening on the fact that there had been a change of venue and further referred to the subject in argument.
In Tucker v. Henniker, 41 N.H. 317, counsel referred to a case by name which had been tried before referees, and stated the amount of damages awarded.
In State v. Foley, 45 N.H. 466, the verdict was set aside because counsel was permitted to argue a matter upon which there was no competent evidence.
In Pearson v. Beef Co., 69 N.H. 584, Baldwin v. Railway, 64 N.H. 596, and Demars v. Glen Mfg. Co., 67 N.H. 404, the fact that the incompetent statements were in the form of questions to witnesses, which the witnesses were not permitted to answer, did not alter the rule, though in the latter case a finding that the verdict was not affected thereby sufficed to prevent a new trial.
In Dow v. Electric Co. 68 N.H. 59, the remarks objected to related to the law of the case and not to the facts, and were not prejudicial.
In Dow v. Weare, 68 N.H. 345, the remarks objected to were supported by the evidence.
In Furnald v. Burbank, 67 N.H. 595, there was a finding that the remarks were not prejudicial. The report of the case does not show what was said.
In Aldrich v. Railroad, 67 N.H. 380, the appeal of counsel to the jury not to be "niggardly" in the assessment of damages, because they might sometimes appreciate niggardliness through personal experience, was not so inconsistent with legal fairness of trial as to require, as matter of law, that there should be a new trial. This was merely an appeal for a fair judgment. It is manifest a niggardly assessment would not be the fair assessment of damages. to which the plaintiff was entitled.
In Sabine v. Merrill, 67 N.H. 226, counsel commented upon a paper not in evidence. The verdict against the claim made established that the remarks of counsel did not produce the effect intended, and that the opposite party was not prejudiced thereby.
In Gault v. Railroad, 63 N.H. 356, the allusion of counsel to the importance of the case to his client was said to be dangerous, and apt to be carried to an extent inconsistent with legal fairness of trial.
In Felch v. Weare, 66 N.H. 582, counsel said: "I cannot *Page 375 comment on evidence that has been excluded." The remark was said to belong to a dangerous class, but that as the jury did not know to what it referred, it might be inferred that the remark had no influence favorable to the party making it.
In Harrington v. Wadsworth, 63 N.H. 400, permitting counsel to draw unwarranted inferences was said to be equivalent to a ruling that the inference may legally be drawn and to be erroneous.
In Mitchell v. Railroad, 68 N.H. 96, 117, the question of fact being whether the engineer rang the bell upon the locomotive before starting, the plaintiff's counsel said that "out of the whole, population of Woodsville" the defendants were able to produce but two witnesses to testify that the bell was rung. This was not objectionable. "It was merely a forcible expression of the presumption that the defendants called on the point all the witnesses they could procure and of the conceded fact that of the nine or ten persons shown to be within hearing, and of others whom the jury might find on the evidence were within hearing, two only were produced to testify that they heard the bell. . . . A verdict is not to be set aside for the reason that counsel urged the jury to draw from admitted or established facts an unwarranted inference. Such an argument is merely an erroneous statement of the law. Whether the inference can properly be drawn is a question of law. Whether, if it lawfully may, it shall be drawn, is for the jury. . . . It is the duty of the court to instruct the jury upon the law, and of the jury to obey the instructions. In the absence of evidence to the contrary, it is presumed that these duties were performed. If in Bullard v. Railroad, 64 N.H. 27, the plaintiff's counsel, instead of stating to the jury as a fact that the physician had not examined the plaintiff and therefore was not called as a witness, had asked the jury to infer from the fact that he was not called, that he had not examined the plaintiff and therefore could not testify to his condition, he would not have transgressed the line of his duty."
It is the right of counsel in the closing argument to comment upon the evidence received on the trial, to criticise the character, conduct, appearance, motives, and testimony of the witnesses, so far as they have appeared and are relevant to the issue. Hilliard v. Beattie, 59 N.H. 462,465. "The range of discussion is wide." Within that range, the only limitation is the ability of counsel. "His illustrations may be as various as the resources of his genius, his argumentation as full and profound as his learning can make it, and he may, if he will, give play to his wit, or wings to his imagination." Tucker v. Henniker, 41 N.H. 317, 323. But the limits in discussion are "the facts in the case and the conclusions legitimately deducible from .the law applicable to them." Jordan v. Wallace, 67 N.H. 175, 178. *Page 376
If counsel errs in his view of the law applicable to the facts, and urges the drawing of unwarranted inferences therefrom, so long as he makes no statement of fact outside the evidence a verdict in his favor will not be disturbed unless the court expressly or tacitly confirms his erroneous view of the law. Mitchell v. Railroad, 68 N.H. 96, 117; Harrington v. Wadsworth,63 N.H. 400. But the statement to the jury by counsel of facts which are incompetent as evidence is error, whenever during the trial the statement is made. It is error whether made in the opening, in the argument, in the interrogation of witnesses, or in the course of altercations between counsel. The statement in argument of material matters which are not in proof, or an attack upon the opposite party based upon other than the facts in the case and the conclusions legitimately deducible from the law applicable thereto, are equally erroneous. If it does not appear that the verdict cannot have been influenced thereby (Sabine v. Merrill,67 N.H. 226; such error is fatal, unless upon objection the party in fault immediately withdraws the objectionable statement, asks the jury not to consider it, obtains an instruction to the jury from the court to that effect, and finding from the presiding justice that the error was cured and did not affect the result. Pearson v. Beef Co., 69 N.H. 584; Perkins v. Roberge, 69 N.H. 171; Shute v. Company, 69 N.H. 367; Greenfield v. Kennett,69 N.H. 419; Heald v. Railroad, 68 N.H. 49; Dow v. Electric Co.,68 N.H. 59; Monroe v. Lumber Co., 68 N.H. 89; Mitchell v. Railroad,68 N.H. 96; Dow v. Weare, 68 N.H. 345; Jordan v. Wallace, 67 N.H. 175; Noble v. Portsmouth, 67 N.H. 183; Sabine v. Merrill, 67 N.H. 226; Aldrich v. Railroad, 67 N.H. 380; Demars v. Glen Mfg. Co., 67 N.H. 404; Felch v. Weare, 66 N.H. 582; Bullard v. Railroad, 64 N.H. 27; Perkins v. Burley,64 N.H. 524; Baldwin v. Railway, 64 N.H. 596; Harrington v. Wadsworth,63 N.H. 400; Gault v. Railroad, 63 N.H. 356; Cross v. Grant, 62 N.H. 675; Hilliard v. Beattie, 59 N.H. 462; State v. Foley, 45 N.H. 466; Tucker v. Henniker, 41 N.H. 317.
The argument of the plaintiff's counsel to which objection was first taken was within the limits of legitimate advocacy. Counsel said: "There is not a witness except one who has testified here, and who is in the employ of the railroad, whose testimony is not utterly false." The witnesses on the two sides of the controversy were in conflict. One inference by which such conflict is explainable is that the witnesses on one side or the other have been untruthful. Counsel have the right to claim that the false testimony came from his opponents. Monroe v. Lumber Co., 68 N.H. 89, 92. This was the substance of the statement. *Page 377
The plaintiff's counsel also said: "Actions tell you, Mr. Foreman, something. I cannot conceive — I do not believe you or any man on that panel can conceive — of such a story as they bring in here to rob my client of his rights. I don't believe that any one of you can conceive of the Concord Montreal Railroad keeping a man in their employ who would hurl his train in that way into danger, and imperil the property of the road and the lives of its passengers. I tell you that a corporation that would do that ought to be indicted, and the man who had charge of this engineer and kept him dry after day in the employment of this company, endangering your lives and mine, ought to have been punished. Hadn't he? What! keep a man who had been so reckless and who had done this awful thing they tell you about; keep him in their employ; keep him day after day; keep him until the present moment; keep him in his bed when he should have been here and testified!" To this remark exception was duly taken. What is now said tending to sustain the exception is the view of the chief justice and myself. In this view a majority of the court do not concur.
As before stated, the defendants' case before the jury was founded upon the proposition that the accident was not caused by any defect in the track, but by the negligence of the engineer in running upon the cross-over, contrary to the rules of his employers, at a high speed — at a speed almost certain to produce derailment. It appeared that the engineer was retained in the defendants' employ, despite the fact of his guilt of criminal recklessness and disobedience of orders, if the claim made at the trial was true. We see nothing objectionable in the comments of counsel upon these facts, as bearing upon the probability whether the claim now made as to the cause of the accident was correct. The facts were legitimately in the case, and counsel had the right to make use of them. Counsel did not say the engineer or the defendants had been guilty of an indictable offence, or claim that they had been if such claim would have been objectionable. His argument was that they had not been guilty of such recklessness or want of care.
The defendants introduced the testimony of a physician to the effect that the engineer was ill at his residence in Manchester and unable to attend court. Upon cross-examination the physician testified that the engineer was able to give a deposition. The plaintiff's counsel then, in the hearing of the jury, offered to take the deposition. The defendants' counsel declined, saying that they did not care to take it, but that the plaintiff's counsel could do so if they chose. Comment upon the fact that the engineer's testimony was not produced was also legitimate. What inference should be drawn from the fact was for the jury. Carter v. Beals, *Page 378 44 N.H. 408, 413. But counsel went further and informed the jury that the defendants kept the engineer in bed when he should have been in court to testify, meaning that the defendants caused or required the engineer to affect illness to prevent his testimony being given at the trial. As counsel for the plaintiff admit in their brief, "the thought was the defendants had kept the witness from court." This fact, if proved, would have been competent. Janvrin v. Scammon, 29 N.H. 280. Of this fact there was no, evidence. The evidence was that the engineer was sick and unable to attend the trial, but could give a deposition. The result of the colloquy between counsel, in the presence of the jury, was that it appeared that neither side desired his evidence in the form of a deposition. Ordinarily no inference can be drawn because a witness equally at the command of each party is not called. If a special inference should be drawn against the defendants because the engineer was still in the railroad employ, the plaintiff was entitled to the benefit of it, and to argue it, and also to any inference that could be drawn from the fact that the defendants, instead of asking for leave to take a deposition in the first instance, introduced the testimony of the physician. As the case stood, neither side being willing to take the engineers deposition, it might have been inferred that the engineer, not possessing the general habit of untruthfulness assigned by the plaintiff's counsel to all railroad witnesses in the case save one, was disposed to tell the truth, and therefore the defendants did not call him. There was no force to the inference against the defendants for not producing his testimony except it was believed he was an honest man and would tell the truth. The jury, as the case stood, might have thought if the plaintiff's counsel so believed there was no reason why the plaintiff should not have taken his deposition, and answered the whole fabric of the defendants' case by the statement of the one truthful railroad man. To meet this inference, or some other apparent to him, the plaintiff's counsel went out of the case and made a statement and charge, in support of which there was no competent evidence. It is argued that what counsel said was not a statement of a fact, but a request to the jury to draw an inference from the attempt of the defendants to explain by the evidence of the physician their failure to call the engineer. Mitchell v. Railroad, 68 N.H. 96. But the jury were not asked to infer from the evidence an attempt, to deceive, and from such inference to infer guilt of the suppression of evidence, nor could they lawfully have been asked to make such inference. If the ingenious argument now made in the brief had been attempted before the jury, it could not properly have been permitted. It contains a charge prejudicial to the defendants of which there was no evidence and which was not legitimately deducible *Page 379 from the facts proved. The case would have been one with Jordan v. Wallace,67 N.H. 175. But no such argument was made. The present case more nearly resembles Heald v. Railroad, 68 N.H. 49, 50, than any other that has been cited. In that case, the statement was that the defendants had tolerated a dangerous practice of lowering the gates at the crossing "for all this time," meaning apparently for a long time. It was said: "The jury were told, not merely that this dangerous act occurred at the time of the accident, of which there was competent evidence, but that such acts were of frequent occurrence, . . . of which there was no competent evidence." In the case before us, the jury were not told the defendants had attempted to deceive as to their reason for not furnishing the testimony of the engineer, of which there was competent evidence, but that the defendants had kept the witness from court, of which there was no competent evidence. In the language used in Heald v. Railroad, the statement was "testimony upon a material point, the natural effect of which was prejudicial to the defendants." In the absence of a finding that it did not have that effect, I think (and in this view the chief justice concurs) that the rule as laid down and applied by the court in the cases cited, if adhered to, compels the conclusion that the trial was not a fair one, and that the error can be corrected only by a new trial. We do not think the rule should be departed from in theory or practice. A majority of the court, however, are of opinion that the remarks excepted to were not such a departure from legitimate advocacy as to require that the verdict should be set aside. The exception is therefore overruled.
An exception was claimed, based upon an objection to the argument of counsel stated to the stenographer, but not made known to the court or opposing counsel when made. For this reason the court refused to allow the exception, to which refusal the defendants excepted. It does not appear when the objection was made known to the court and the exception claimed, but it is assumed this was done at the conclusion of the plaintiff's argument, the earliest time at which the claim could have been made, if not made at the time of the utterance objected to. The foundation of the rule requiring counsel to confine their argument to the facts in proof is to prevent the determination of the issue upon unsworn statements, incompetent as evidence for that reason if for no other. Hence, objection to incompetent evidence of counsel in argument should be taken as to other incompetent evidence — when it is offered. "Ordinarily, objections to evidence, unless made when it is first introduced and its bearing understood, will be considered to have been waived. Bassett v. Company,28 N.H. 438, 452; Taylor v. Railway, 48 N.H. 304, 309. The judge may entertain an objection *Page 380 to evidence made at any stage of the trial, and exclude it from consideration by the jury if justice requires it (Judge of Probate v. Stone, 44 N.H. 593, 607); but he is not bound to entertain the objection when made out of season, and a refusal to do so is not error." Gardner v. Kimball, 58 N.H. 202. The error of a defective or erroneous statement of the evidence by the judge in his charge affects the fairness of the trial in the same way as like statements by counsel in argument. No exception can be taken to such error in the charge of the court unless his attention is called to it at the time. Cutler v. Welsh, 43 N.H. 497, 499. The error in either case is not in all cases incurable. An immediate correction of the error may save the trial. At no time can such correction be made with greater probability of removing the wrongful effect than at the time of utterance. For counsel, conscious of the error, to be permitted to sit by without making objection until there is less probability the wrong can be cured, would be to turn a rule of justice and fairness into a mere trap. Lisbon v. Bath, 23 N.H. 1, 9; Lyman v. Littleton, 50 N.H. 42, 45. The universal practice appears to have been to object upon the instant. In Felch v. Weare, 66 N.H. 582, it was held that if the party objecting for such cause gives the court to understand that he is satisfied with the amende made at the time by the party in fault, he waives his exception. If this be so, the failure to object at the time is clearly a waiver of the right to object. The refusal of the presiding justice to allow an exception to which the party objecting is not entitled as matter of law presents no question for our consideration. Monroe v. Lumber Co., 68 N.H. 89, 92.
It is not necessary to give reasons for the proposition that an objection is not taken until it is made known to the presiding justice and an exception claimed of him.
The result is that the exceptions are overruled. From this result the chief justice and myself dissent for the reasons stated.
Exceptions overruled.
PEASLEE, J., did not sit: the others concurred.
The defendants moved for a rehearing upon the following grounds:
(1) That the Concord Montreal Railroad did not, and in law could not, delegate a duty of repairing the track to the Boston Maine Railroad.
(2) That the plaintiff, as between himself and the other defendants, assumed the risk of the negligence of the Boston Maine Railroad and their servants. *Page 381
(3) That there was no evidence of negligence in the Boston Maine Railroad or their employees.
(4) Because of the statements of the plaintiff's counsel in argument.