Under the practice reaffirmed at this sitting in West v. Railroad, post, a motion to limit the issues to be retried for the correction of errors should ordinarily be addressed to the superior court in the first instance. However, as the plaintiff's motion was entered before the filing of the decision in that case, and as the question raised can be disposed of here, it has been considered.
The error occurred in the trial of the issue of liability. The motion raises the question whether or not it appears from the record that the error may have also affected the assessment of damages. The plaintiff charged the defendant with negligent failure to install a guard arm above its grounded cable. The jury was erroneously allowed to find that by rule, and by written contract, the defendant had both recognized the danger of such a situation and admitted the necessity of the arm for the decedent's protection. The drawing of such inferences presupposed a finding, contrary to the truth, that the defendant's omission to install a guard arm was a breach of a contract it had made with the decedent's employer for the decedent's protection and was in the teeth of a rule it had itself adopted for the protection of its own linemen. In the aspect under discussion, the case is practically identical with Dow v. Latham, 80 N.H. 492, 499, where the defendant was improperly placed before the jury as operating an automobile in defiance of the statute; nor is it unlike McBride v. Huckins,76 N.H. 206, 213, where, by reason of the standard erroneously applied, the defendants were held up to the jury as misrepresenting their skill as surgeons; or Laird v. Railroad, 80 N.H. 58, 61, where the plaintiff, *Page 470 upon whose testimony his claim depended, was held up to the jury, by the evidence improperly admitted, as untruthful and therefore unworthy of credence. In each of the first two cases it was considered that the error affecting the issue of liability might also have affected the issue of damages, and in the latter that the error affecting damages might likewise have affected the issue of liability. In the present case, the defendant, by reason of the use of the evidence permitted, was erroneously held up to the jury as having violated the provision of an express contract made for the decedent's protection, as well as having disregarded a rule adopted to govern its own conduct. The effect of the erroneous use of the rule and contract is emphasized by the fact that they were the principal reliance of the plaintiff in the proof of liability; or, as the court stated in the charge, "the plaintiff bases her claim largely upon the rule." It appeared at the argument of this motion that the amount awarded was the maximum permitted by statute.
The evidence, because of the objectionable use to which it was put, had a manifest tendency to create a general prejudice, and therefore may have affected the conclusions of the jury upon the issue of damages. As the prejudicial character of the evidence as used conclusively appears from the record, all of which was transferred, the order must be:
Motion denied: former order confirmed.
All concurred.