1. The action was brought in the name of the plaintiff and her husband, and, against the exception of the defendants, the plaintiff was permitted to amend her writ by striking out the name of her husband. Actions of tort for personal injuries to a married woman should be brought in the name of the wife alone. Harris v. Webster, 58 N.H. 481. The amendment was properly allowed.
2. The plaintiff was permitted to testify, that at the time of the accident she said she thought her neck was broken, and she felt at one time as if she would have to go in before getting home. The testimony was not a statement of the plaintiff's declarations of what occurred, made after the — accident, but of a part of the occurrence itself, and of an exclamation indicative of her feelings. It was competent evidence of what her sufferings were at the time Perkins v. Concord Railroad, 44 N.H. 223; Howe v. Plainfield; 41 N.H. 135; Taylor v. G. T. R. Co., 48 N.H. 304.
3. The plaintiff's evidence tended to show a highway at the place of the accident by use for public travel for more than twenty years. Stevenson, one of her witnesses, who had observed the travel at that place for more than sixty years, was permitted to testify that more than a year after the accident he saw three carriage tracks from two to four feet outside the place where the log which caused the accident lay, and that the place of travel around the corner at the junction of the roads had not materially changed since he had known the road. Another witness, Plummer, testified to seeing wheel tracks at the same place at different times from a year to fifteen months after the accident. The evidence of *Page 57 wheel tracks, seen a year after the accident, raised the question of fact whether the tracks were too remote in point of time. Palmer v. Concord,48 N.H. 211, 219; Darling v. Westmoreland, 52 N.H. 401, 408, 410, 411; Haines v. R. F. I. Co., 52 N.H. 467; Hovey v. Grant, 52 N.H. 569. It being found, as matter of fact, that the evidence was not too remote, it was admissible.
4. The accident happened by the carriage running upon the log at its west end. The east end of the log was admitted to be in the highway, and Hobbs, one of the plaintiff's witnesses, was permitted to testify that before the accident he saw wheel marks on the log at the east end. Evidence of an obstruction at a place different from that of the accident would not generally be competent to show the existence of the obstruction complained of. Evidence of wheel marks upon the east end of the log was evidence of an obstruction at that place. And whether it was evidence of an obstruction at the place of the accident, depended upon the similarity in size, form, and position, with reference to the travel upon the highway, of the west end of the log with the east end, and upon other facts at the trial, showing the nearness or remoteness of the evidence to the point in question. The evidence not being found too remote, there was no error in its admission. Darling v. Westmoreland, 52 N.H. 401, 410, 411.
5. The defendants excepted to the admission of the record of the laying out of the highway by the selectmen of Ossipee in 1792, because it did not appear that there was a written application for the laying, or any notice of a hearing, or any award of damages to the land-owners. The ancient record of the laying out of a highway, with evidence of its subsequent use by the public for twenty years, is evidence from which a prior application for the laying out, notice, and award or waiver of land damages may be inferred. State v. Alstead, 18 N.H. 59; Hayward v. Bath, 38 N.H. 179; State v. Morse, 50 N.H. 9, 14; Thompson v. Major, 58 N.H. 242.
6. Dr. Goss, the plaintiff's family physician, was called to see her a month or more after the accident, and was asked, when testifying, whether he discovered any signs of simulation on the part of the plaintiff. He answered, he did not, but discovered rather a disposition to conceal her sufferings. The part of the answer following the denial was excepted to by the defendants. The whole answer was material to the inquiry, and material and relevant matter is not to be excluded because not called for by the question. Streeter v. Sawyer, 28 N.H. 555, 559.
7. James H. Plummer, the plaintiff's husband, was asked, on cross-examination, if he had not stated that he was thrown out with such force as to injure his heart and kidneys; that he was perfectly sound before; and if he had not, a few years before, made a claim against the town of Laconia for the same injuries. The inquiry was excluded, subject to the defendants' exception. The inquiry was evidently designed to impeach the credit of the witness. *Page 58 Whether the statements called for would tend to contradict any testimony which the witness had given does not appear How far the proposed course of inquiry would be fairly and profitably pursued, on cross-examination, for the purpose of discrediting the witness, was a question of fact, the decision of which might depend upon the remoteness of the subject of inquiry from the material questions on trial, and upon many circumstances. There was no error of law in the exclusion of the question. Gutterson v. Morse, 58 N.H. 165.
8. Hobbs, a witness of the defendants', testified that in 1869 he was highway surveyor, and removed a rock lying near the place of the accident, by the direction of White, one of the selectmen. He was asked if White claimed that the rock was within the limits of the highway, and if he had permission from the adjacent land-owner to remove it. The inquiry was excluded. It was competent for the defendants to contradict, rebut, or explain the evidence of the plaintiff, which tended to show a highway by adverse use; and the offer to prove, by Hobbs, that the rock was removed and the repairs were made by the license of the abutting land-owner, was an offer to show that these acts were not done, adversely, under a claim of public right. Evidence of travel on the road, or of repairs made without permission or license, was evidence for the plaintiff of an adverse use; and evidence of other instances of travel, and repairs on other days, by permission, was evidence of a use not adverse nor under a claim of right, and was in rebuttal of the plaintiff's claim. White's intent in directing Hobbs to remove the rock, whether he understood he was acting adversely, under a claim of public right, or under the license of the land-owner, was material, and could be shown by proof of his declarations made at the time. The exclusion of the evidence was erroneous.
9. Dr. Bassett, a witness of the defendants', examined the plaintiff on the evening of the accident, and testified that he thought her injuries were not serious. The plaintiff was permitted to show, by cross-examination, that, before examining the plaintiff, the witness was informed that she received her injury by being thrown forward upon the dasher and bruising her forehead. The evidence was competent to show the witness's state of mind when he entered upon the examination, and how far that affected his conclusions on the nature and extent of the injury. It was a question of prejudice, and a proper subject for cross-examination.
10. The court limited the number of merely impeaching witnesses to twenty for each party. In this there was no error of law. Bunnell v. Butler,23 Conn. 65; 1 Gr. Ev., s. 461, note.
11. The defendants claimed that Plummer, the plaintiff's husband, was intoxicated at the time of the accident. Blakely testified that the day after the accident Plummer did not appear to know that he had lost a wheel tire from a wagon, on which he had drawn a load of ore the day before. Swain was permitted to testify *Page 59 that Plummer told him, on the day of losing the tire, that he had lost it, and to go and get it. Swain's testimony tended to contradict the evidence of Plummer's intoxication on the day of the accident, and for that purpose it was competent.
12. The defendants claimed that the plaintiff's husband was a fast and careless driver, and introduced, in evidence, particular instances of his fast and careless driving. The plaintiff was permitted to testify to other instances of his careful driving when she had been riding with him, to which the defendants excepted. The evidence was relevant to the question of the husband's character for driving safely or otherwise, and was also relevant to the question of the plaintiff's negligence in selecting a suitable driver on the occasion of the accident.
The exceptions are overruled, excepting the eighth. That is sustained. The evidence, which was erroneously excluded, related solely to the existence of a highway at the place of the accident, and has no bearing on any other part of the case. On that point
A new trial is granted.
SMITH, J., did not sit: the others concurred.