The ruling of the court excluding the testimony offered by the plaintiff was the law of the trial, even if upon further examination it should be found that the testimony was competent (Bullard v. Railroad, 64 N.H. 27; Felch v. Railroad, 66 N.H. 318, 320; Mitchell v. Railroad, 68 N.H. 96; Tyler v. Railroad, 68 N.H. 331; Shute v. Company, 69 N.H. 210), and did not fall within the class of testimony which the court may, in the exercise of their discretion, reject or receive according as they find that its bearing upon the main issues of the trial is or is not remote. The exception afforded the plaintiff full protection from the evil results of any error in the ruling. It was her duty and the duty of her counsel to submit to the ruling modestly, however confidently they questioned its correctness, and to avoid any attempt to influence the jury to disregard or override it. An orderly and fair trial of a case cannot be had without a rule of this kind.
The particular questions for consideration are whether this duty was violated, and if so, whether the defendants' rights were prejudiced by the violation. The first of these questions must be answered in the affirmative. The ruling made in chambers was unambiguous and included all the points covered by the three *Page 332 questions were asked the witness in the presence of the jury. There was no necessity for asking the questions to preserve the plaintiff's rights. As has been previously remarked, her rights were fully protected by the exception taken in chambers. No excuse has been offered for asking the questions, and no reasonable excuse is apparent. There was a plain violation of duty on the part of counsel, and the plaintiff's verdict must be set aside in consequence of it if it does not clearly appear that the defendants' rights were not prejudiced thereby.
Two reasons are given by the plaintiff for her position that the asking of the questions was harmless to the defendants. She says, in the first place, that the evidence called for by the questions was competent. In other words, if the jury inferred answers that were favorable to the plaintiff, and considered them in arriving at verdict, no wrong was done; for the jury should have had the testimony laid before them under a ruling of the court. Aside from the necessity, already alluded to, of having the court's rulings implicitly regarded as the law of the trial, both by the counsel and the jury, there is a further conclusive answer to this position, namely, that the testimony went before the jury without the safeguards arising from a cross-examination of the witness and with no opportunity for the introduction of opposing testimony. Though the defendants asked for the ruling, they are not in fault because They had a right to oppose the reception of any testimony which they believed to be incompetent. The plaintiff, and the plaintiff alone, must be held responsible for the one-sided character of the trial, so far as this testimony rendered it one-sided.
The plaintiff further says that no testimony was introduced by the questions, and that the jury could not draw inferences unfavorable to the defendants from the asking of them. It is true that the questions are not in a declarative form; but they are very suggestive of the testimony which the plaintiff was seeking, and the suggestion becomes more definite as the questions multiply. The jury might not be able to infer from the first question what particular conduct the counsel had in mind. The second question makes this plainer: "What was the conduct of these crowds . . . in regard to boarding or attempting to board the cars as they came in at or near the north curve?" The last question is more definite still, and states (in an interrogative form, to be sure) the substance the testimony which the plaintiff wanted to lay before the jury: "What was the custom or general practice of the crowds . . . as to catching hold of the grab-rails on the east side of the car at or near the north curve, and running along with it until the car stopped, upon the occasions when you were there during the summer of 1900 previous to the accident?" The mere putting of the *Page 333 questions conveyed to the jury the information that on previous occasions during the summer of 1900 crowds of people boarded or attempted to board the defendants' cars at or near the curve, and that it was the custom of the crowds to lay hold of the grab-rails on the cast side of the car at or near the curve and run along with the car until it stopped. Under the court's ruling, it was not proper for the jury to have this information. The fact that the information was conveyed to them by means of questions instead of declarations is immaterial. Demars v. Company, 67 N.H. 404, 407; Dow v. Weare, 68 N.H. 345, 346. The multiplication and progressive suggestiveness of the questions rendered them more impressive. The subsequent offer to show the defendants' previous conduct with crowds that year and years before, made by the plaintiff during a discussion relating to the competency of proffered testimony, again called attention to the matter in an emphatic manner, and had a tendency to deepen the impression made by the questions. The remark of the defendants' counsel, to which the offer was a reply, must be understood as referring to the size of the crowd — not its conduct. In view of the ruling in chambers and its repetition when the questions were asked, the making of the offer was not justifiable. Little v. Railroad, ante, p. 61. While the allusion to the matter in the opening statement to the jury is not of itself sufficient ground for disturbing the verdict, it had a tendency to increase the liability of the questions to affect the fairness of the trial. The natural tendency of the conduct of the counsel, as a whole, was to influence the jury to believe that the action of the crowds on previous occasions was such as to endanger the safety of persons desiring to board the defendants' cars, and to make it their duty, in the exercise of reasonable care, to take special precautions to guard against the danger. It does not clearly appear that the conduct did not have this effect and was not prejudicial to the defendants. The failure of the plaintiff to pursue the course suggested in Bullard v. Railroad, 64 N.H. 27, prevents her from asserting here that it did not have such effect in fact.
Exceptions sustained: verdict set aside: new trial granted.
BINGHAM, J., did not sit: the others concurred. *Page 334