The court at a law term will not revise the discretion of a trial judge in a matter relating to costs, unless such discretion is specially reserved.
On the question whether a tree was situated so near the travelled path of a highway as to make the highway at that point defective and dangerous to people travelling thereon, evidence is admissible to show that at various times teams and carriages ran against the tree.
Whether a traveller upon a highway was in the use of sufficient care, is a question of fact, in determining which a jury may properly consider evidence of the traveller's knowledge or ignorance of the condition of the road and of his choice of tracks thereon.
To a declaration alleging damage sustained by reason of a tree and rocks described as obstructions in a highway, an amendment alleging the defect to be such a condition of the road as exposed travellers to a danger of going out of the highway and coming in contact With the tree and stones is admissible.
FOSTER, J.
The amendment was allowed upon the authority of Davis v. Hill, 41 N.H. 329, and with the reasoning and conclusion of the court in that case we are entirely agreed.
Questions relating to the allowance of costs are not open to revision at the law terms, unless, as in the present case, the question is specially reserved by the justice presiding at the trial term. Janvrin v. Scammon, 29 N.E. 280; Messer v. Bailey, 31 N.E. 21; Sanborn v. Sanborn, 41 N.H. 306, 307. Davis v. Hill is not an authority for allowing such an amendment only upon payment of costs. It only appears in that case that terms were imposed, for reasons which are not stated in the reported decision. The facts in the present case indicate no reason for revising the discretion of the trial judge in the matter of costs.
As tending to show whether the tree against which the plaintiff's carriage was projected was in dangerous proximity to the travelled path, testimony that other persons at various times, during a period of several years before the plaintiff's accident, had run against it, was admissible. The limitation of such evidence, in respect to distance of time and number of witnesses, is a matter of judicial discretion, to be exercised in view of the circumstances of the case. Darling v. Westmoreland, 52 N.H. 401, 411.
The question of reasonable and ordinary care, in view of the plaintiff's knowledge or ignorance of the condition of the road, as disclosed by the evidence, and his choice of the track, was properly submitted to the jury, under instructions in which we can discover no error. It was not a question of law. Stark v. Lancaster, 57 N.H. 88, and cases cited.
Judgment on the verdict.
DOE, C. J., did not sit.