The plaintiff's counsel stated in effect that the defendants had tolerated it dangerous practice of lowering the gates at the crossing "for all this time," meaning apparently for long time. 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 when teams were upon the crossing, of which there was no competent evidence. The statement was testimony given by counsel, — an unsworn witness, not subject to the test of cross-examination. It 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, the necessary conclusion is that the trial was not a fair one, and that the error can only be corrected by a new trial. Bullard v. Railroad, 64 N.H. 27; Jordan v. Wallace, 67 N.H. 175; Noble v. Portsmouth,67 N.H. 183.
The claim of the plaintiff that in the statement objected to, counsel referred to the shifting of cars over the crossing and not to the lowering of the gates, is not sustained by a reasonable construction of the language used. It occurs in the part of the argument relating to the method of operating the gates at the time of the accident, and no reason is suggested why the jury should have understood that it referred to another subject previously discussed. If such was the intention of counsel, he failed to convey the idea to the jury.
Verdict set aside.
SMITH, CHASE, and WALLACE, JJ., did not sit: the others concurred. *Page 51