1. Exception 1 presents nothing warranting the interposition of this tribunal. The question objected to was asked on cross-examination and, as was expressly stated, for the purpose of discrediting the witness. How far counsel shall be permitted to go in cross-examination for the purpose named, the law leaves to the discretion of the superior court. Gutterson v. Morse, 58 N.H. 165; Free v. Buckingham, 59 N.H. 219; Merrill v. Perkins,59 N.H. 343; Spalding v. Merrimack, 67 N.H. 382.
2. In view of the character of the comment covered by exception 2, and the previous and subsequent course of the trial, we cannot say that it was "so inconsistent with legal fairness of trial as to make it a matter of law that there should be a new trial." Gilman v. Laconia, ante, p. 212; Perkins v. Roberge, 69 N.H. 171; Bow v. Weare, 68 N.H. 345; Aldrich v. Railroad,67 N.H. 380; Gault v. Railroad, 63 N.H. 356, 360, 361.
3. The testimony covered by exception 3, that the plaintiff at the time of his injury was one of a party of men and women who had been drinking and were on their way to a road-house "where they expected to get more liquor and have a high time," was competent, in connection with the other evidence in the case, as having *Page 509 some tendency to show that the injury resulted, as contended by the defendants, from the intoxication and carelessness of the plaintiff and his party, instead of from the defective highway, as contended by the plaintiff. It came fairly within the principle, that when the truth of anything is in question and the evidence is conflicting, facts and circumstances having a tendency to show its probability or improbability are competent. Swain v. Cheney, 41 N.H. 232, 235; Hampstead v. Plaistow,49 N.H. 84, 96; Cook v. Bennett, 51 N.H. 85, 93, 94; Darling v. Westmoreland, 52 N.H. 401; Hovey v. Grant, 55 N.H. 497, 501 502; Hall v. Brown, 58 N.H. 93; Parkinson v. Railroad, 61 N.H. 416; Plumb v. Curtis,66 Conn. 154; Insurance Co. v. Weide, 11 Wall. 438, 440; Tay. Ev., s. 316; 1 Gr. Ev., s. 51 a, note b; Steph. Dig. Ev. 9. Upon the question whether the plaintiff and his party were intoxicated and driving carelessly at the time of the injury, it was certainly a matter of some logical bearing, upon the general probability, whether the party consisted of the plaintiff and his family on their way to church, or of two men and two women who had been drinking, and who were on their way to a road-house "where they expected to get more liquor and have a high time." Assuredly, the make-up, destination, and object of the party would have been available in the plaintiff's behalf in the former case, and we see no reason why it was not competent against him in the latter. of course, there was a preliminary question of remoteness for the superior court, not reviewable here. Furthermore, it was the right of the plaintiff, in order to guard against prejudicial misuse of the evidence, to have the jury instructed that it could only be considered upon the question of the plaintiff's due care; and a refusal to give such instruction would have been exceptionable error and good ground for new trial. But we should be blind to the logic of facts and indifferent to the weight of authority were we to stay that the evidence was legally incompetent.
4. It is not apparent how the plaintiff could have been prejudiced by the comment covered by this exception. It belongs at most to that class of irregularities not so inconsistent with legal fairness as to require the granting of a new trial. Gilman v. Laconia, ante, p. 212, and other authorities cited in connection with exception 2.
5. This exception cannot be sustained, for the reasons stated in overruling exception 3.
6. The court excluded the testimony to which exception 6 relates, instructed the jury not to consider it, and finds that they did not. Furthermore, there is no reason to believe that the evidence improperly influenced the verdict. The exception must therefore be overruled. Goodwin v. Scott, 61 N.H. 112, 115; *Page 510 Burnham v. Butler, 58 N.H. 568; Deerfield v. Northwood, 10 N.H. 269.
7. Exceptions 7, 8, 9, and 10 are clearly untenable.
8. The testimony covered by exception 11 had a tendency to show the nature of the expedition and, in connection with other evidence, a bearing upon the probability of due care on the part of the plaintiff. In this view it was competent for the reasons and upon the authorities to which attention was called in considering exception 3. But in any view the exception presents no ground for new trial. Rowell v. Hollis, 62 N.H. 129; Welch v. Adams, 63 N.H. 344, 352; Whitman v. Morey, 63 N.H. 448, 458.
9. That part of the argument of the defendants' counsel to the jury to which the plaintiff has excepted was warranted by the evidence and was within the bounds of legitimate advocacy, upon the issue of the plaintiff's contributory negligence.
10. The instruction of the court on the question of intoxication, taken as a whole, was in accordance with the law. Stuart v. Machias Port,48 Me. 477; Alger v. Lowell, 3 Allen 402; Thorp v. Brookfield,36 Conn. 320; 40 L.R.A. 138 e; 1 Thomp. Com. Neg., ss. 340, 452, 494; 15 Am. Eng. Enc. Law (2d ed.) 474.
11. The objection taken to the charge of the court in general terms is not sustainable. Reynolds v. Railroad, 43 N.H. 580; Paine v. Railway,58 N.H. 611, 615.
Exceptions overruled.
All concurred.