ion of value would not be such an opinion as the law permits the jury to consider as evidence. But it would not necessarily have the effect of vitiating their verdict after an instruction from the court that they could not consider it. It is the usual practice, when a witness makes statements in testifying that are incompetent and prejudicial, for the court to order them stricken from the record; and, if the jury are instructed not to consider them, their erroneous effect is ordinarily cured. Lee v. Dow, 73 N. H. 101, 59 Atl. 374.

In Dow v. Weare, 68 N. H. 345, 44 Atl. 489, which was an action for injuries caused by a defective highway, it appeared that gravel had been dumped in the road so that the obstruction was not so apparent at the time of the trial as it was when the accident occurred. The time when the repair was made became material upon the question of the extent of the alleged defect. "The question when the gravel was put there, and the answer "Thursday after the accident,' upon objection were ruled out." And the court say: "It is difficult to see how if the evidence had been admitted the objection could have been sustained, unless the fact shown was used as evidence of an admission of need of repair (Aldrich v. Railroad, 67 N. H. 250, 29 Atl. 408), which the case finds was not the fact. * Counsel in the trial of a cause must necessarily put many questions which may be held incompetent." If they are also prejudicial, one means of curing the error is afforded by instructions to the jury, which counsel have ample opportunity to request. Furthermore, it does not appear that the plaintiff's counsel understood when he asked the question that it was incompetent. It is certain that its incompetency was not so clear that it could be inferred that he knew the fact. Believing it was competent in the cross-examination of the witness to ascertain whether he considered the statutory provision as an element in his estimate of value-taking that view of the propriety of the question-it is immaterial that he had a purpose to get before the jury the fact that the court would increase the amount of the verdict by one half. There is no suggestion that counsel intended to ask a prejudicial question which he knew was incompetent. He had a right to ask questions which he thought were competent, though he might know the judge would exclude them, and to protect his client by an exception to the ruling, as he did in this case. Knowledge by counsel that the trial court will exclude certain evidence does not render the offer to produce it by questions addressed to witnesses improper or reprehensible. In many cases such procedure affords the only means for parties to preserve their legal rights. It is not suggested that the plaintiff's counsel had investigated the subject so thoroughly as to know that the ques

the purpose of ascertaining the grounds upon which the witness based his opinion; and the inference is that one purpose he had was to ask a legally competent question, in the absence of a finding that he had no such purpose. In short, it cannot be said he had no right to ask the question upon the theory that the answer might furnish a test of the witness' expert testimony of the value of his land. That was his legal right.

It must, of course, be conceded that he had no right to use the evidence elicited from the witness, or practically contained in the interrogatory, for an illegal purpose. But as he intended to ask a question that was legally competent, or at least one about which good lawyers might differ, the fact that he also had à purpose to make an illegitimate use of it, or hoped the jury would use it in a way deemed illegitimate at the trial, did not make the question improper, if it was otherwise proper for counsel to ask. Suppose the question had been ruled in, and it should be held as a matter of law that it was competent as a test of the reliability of the witness' opinion and for noother purpose, would it be claimed that it should have been excluded because the examiner hoped the jury would consider it upon an issue in proof of which it was not legally admissible? In such a case the party's protection is secured by asking for special instructions to the jury. An exception to the admission of evidence relevant to any issue in the case ordinarily raises no question of law. Robinson v. Stahl, 74 N. H. 310,. 67 Atl. 577; Haskell v. Railway, 73 N. H. 587, 64 Atl. 186. No reason is perceived why when the objectionable question containing the statement of an incompetent fact is ruled out the objecting party should receive greater protection than he does when. it is ruled in upon a single issue. One difficulty with the defendants' argument is that there is at least reasonable ground to contend that the objectionable fact disclosed in the question was competent, and that the plaintiff's counsel took that view of it at the trial. The case is not one where counsel has knowingly stated prejudicial facts in the presence of the jury, the competency of which on any of the issues presented nolawyer would attempt to sustain. Demars v. Company, 67 N. H. 404, 407, 40 Atl. 902. Nor is it a case where counsel persisted in. injecting the fact into the case after it had been ruled out, as in Batchelder v. Railway,. supra. As it had not been ruled that the statute could not be referred to in the examination of expert witnesses, and as it is not so clearly incompetent for that purpose that counsel could not reasonably and honestly claim that it was competent, his desire that the jury would make an illegitimate use of it furnishes no sufficient ground for setting aside a verdict.

The exception to the remarks of counsel

no statement of fact not in evidence. Counsel was merely urging the jury to draw a certain inference from the evidence in the If such inference was for any reason improper or illegitimate, the erroneous effect of the argument was correctible by the court in its charge to the jury. A wrong statement of the law or the making of unwarranted inferences from the evidence in argument is no cause for setting aside the verdict. Leavitt v. New England Tel. & Tel. Co., 72 N. H. 290, 56 Atl. 462; Seeton v. Dunbarton, 73 N. H. 134, 137, 59 Atl. 944.

The defendants' exception to the refusal of the court to give certain instructions to the jury bearing on the elements of damage for them to consider has not been urged by counsel, and, so far as appears, the charge of the court submitted to the jury all legitimate grounds for assessing the damages asked for in the defendants' requests. Exceptions overruled. All concurred.

GIBSON v. MAINE CENT. R. R. (Supreme Court of New Hampshire. Carroll.

Nov. 2, 1909.)

1. RAILROADS (§ 350*)- OPERATION-ACCIDENT AT CROSSINGS QUESTIONS FOR JURY. Deceased, riding a bicycle, failed to observe an extra train which gave no signal of its approach. He was 15 years old, familiar with crossings, and a good rider. Two witnesses testified that he was a careful boy, so far as they knew; but the flagman testified that he had cautioned him about riding ahead of trains. Held, that evidence of careful habit was insufficient to raise the inference that he came on the track in a prudent way, and on that issue the defendant was entitled to a directed verdict.

[Ed. Note. For other cases, see Railroads, Dec. Dig. § 350.*]

2. RAILROADS ($335*)-OPERATION-ACCIDENT AT CROSSING-CONTRIBUTORY NEGLIGENCE. Where a bicycle rider struck by a train at a crossing could have avoided it by stopping up to the time he was within 10 feet of the track if he had used due care, and defendant's servants, by using the same care, could have avoided the injury by stopping up to the time the train was within 100 feet of the point of collision, but not thereafter, his contributory negligence precluded a recovery.

[Ed. Note. For other cases, see Railroads, Dec. Dig. 335.*]

Transferred from Superior Court, Carroll County Chamberlin, Judge.

ment for defendants.

PEASLEE, J. It is conceded that there was evidence of the defendants' negligence, and the first question raised by the defendants' exception to the denial of their motion for a verdict is whether there was evidence from which it could be found that the deceased was in the exercise of due care. He was a boy 15 years of age, and had lived for some time in the vicinity of the crossing where he was injured. He had often passed over it, and was acquainted with the method of managing trains and giving signals in that locality. He was riding a bicycle and was approaching the crossing at about 10 miles an hour. The train was an extra, running 20 miles an hour, and upon no regular schedule. There was evidence that the deceased went upon the crossing without knowledge of the approach of the train, and that the customary signals were not given. From this it is argued that, applying the rule of Smith v. Railroad, 70 N. H. 53, 47 Atl. 290, 85 Am. St. Rep. 596, it could be found that the deceased relied upon the signals, and so was careful when he went upon the track. But an essential element in the Smith Case is lacking here. In that case there was evidence that the deceased was a person of habitual prudence; and it was from this habit, as basis of probable conduct, that it was inferred that he came onto the crossing in a prudent way; i. e., reonto the crossing in a prudent way; i. e., relying upon the signals. In this case the only evidence of the boy's care is in the following testimony:

Cross-examination of Owen Alley: "Q. Was this boy in the habit of riding as other boys do, just as fast as they can, holding their heads down? A. No, sir; he rode ordi

narily and with usual caution, I think. Q.

And he seemed to have his wheel under control all the time when you have seen him riding? A. To the best of my observation, I should say so."

Cross-examination of Mrs. Hattie E. Cheney, the boy's mother: "Q. How long had the boy been riding a wheel? A. Two years. Q. Two years prior to his injury, and he was a pretty good rider was he not? Could he control his wheel? A. He was a very careful rider. Q. And seemed to have good control of the bicycle? A. Yes, sir. Q. As to his acquaintance with the railroad crossings and so forth? A. Very familiar.”

trainmen.

Walter D. H. Hill and John B. Nash, for plaintiff. Drew, Jordan, Shurtleff & Morris, for defendants.

cycle over the crossing ahead of trains? A. Yes, I have; I have cautioned him."

Cross-examination of Ray W. Purt: "Q. Was he a careful boy? A. Well, as much as I

Subject to exception, the jury were instructed as follows: "Then the plaintiff says that they did not ring the bell or blow the whistle. It is true that there is no statutory duty on the part of the defendants to ring the bell or blow the whistle under such circumstances. On occasions of this kind they are called upon to blow the whistle when they are coming to crossings, and to ring the bell when they go over crossings. But they are called upon to do whatever ordinary prudence would call them to do to avoid doing harm to trespassers. They can do it in any way they see fit, but they have got to act with the prudence of the average man under the same circumstances. If prudence called upon them to ring the bell and blow the whistle, then they should do that. If it called upon them to stop the engine to avoid killing people, they have got to do, at any rate, whatever the average man would do under the same circumstances, with the appliances that were at hand. * *You understand, gentlemen of the jury, that the doing or failure to do any one particular thing does not constitute negligence. You have to consider the plaintiff's conduct and the defendants' conduct, and say whether they used ordinary care by what they did or failed to do. I do not say that any one particular act was negligence or not. It is for you to say whether what they did or did not do came up to the standard of ordinary care under the circumstances."

The defendants appear to have excepted generally to the language quoted. They now base their objection upon the third sentence: "On occasions of this kind they are called upon to blow the whistle when they are coming to crossings, and to ring the bell when they go over crossings." Taken by itself, this language might be interpreted to mean that for the purposes of this case the defendants, though not required by statute to do so, were as matter of law required to whistle and ring at crossings, and consequently in fault and guilty of negligence toward the plaintiff if they failed to do so. If

of the other portions of the charge quoted, the court could not have intended to tell the jury that the failure to do certain acts was negligence. He expressly told the jury that the doing or failing to do any particular act did not constitute negligence, and expressly warned them that he did not say any one particular act was negligence, and that it was for them to say whether what was done constituted ordinary care. This was equivalent to telling the jury that, if he had been understood to say any act done or omitted constituted negligence, he did not intend to be so understood. It does not appear probable or even possible that the meaning of the court could have been misunderstood, or the jury have failed to understand that the rule given them for their guidance was the conduct of the average man under the circumstances. But not having specially called attention to this expression of which they now complain, so that the court might have corrected what appeared to have been said, the defendants take nothing by their general exception. Harris v. Smith, 71 N. H. 330, 52 Atl. 854; Wheeler v. Railway, 70 N. H. 607, 615, 50 Atl. 103, 54 L. R. A. 955; Emery v. Railroad, 67 N. H. 434, 435, 36 Atl. 367; Edgerly v. Railroad, 67 N. H. 312, 36 Atl. 558; Rowell v. Chase, 61 N. H. 135. "When an exception is taken to instructions which are erroneous, upon a point which, if made known at the time, would have been rectified, the point must be stated so that the court can understand the ground of objection and have an opportunity to correct the error. If not stated the objection will be regarded as waived. It would be unjust to allow a party to lie by and take the chances of a verdict in his favor, and, if defeated, avail himself of an exception which might have been obviated if seasonably known." Haines v. Insurance Co.. 59 N. H. 199, 200. "The duties of the bench and the bar are to some extent reciprocal. If the judge makes a mistake, and counsel perceiving it do not call his attention to it, pointing out an error which he may instantly correct, a verdict will not be disturbed on account of the error." Paine v. Railway, 58 N. H. 611, 615.

The defendants excepted to evidence of the failure of the defendants to blow the whistle and ring the bell of the locomotive at the street crossings above the point where the plaintiff was injured. Within the distance of 870 feet traversed by the locomotive immediately before the plaintiff was struck were three street crossings. If the customary signals were given, the jury might have thought that by the exercise of care the plaintiff could not have failed to have learned of the engine's approach in season to have escaped injury. The evidence was competent and material upon the question of his care. It might also be found that the crossing warnings were sufficient warning for per