Argument commenting on the opposing party's failure to call available material witnesses was justified where the witnesses were apparently accessible. Where the facts contained in affidavits offered in support of a motion for a new trial did not compel the finding that a different result would have been reached the denial of the motion was warranted.
BLANDIN, J.
The plaintiff's argument regarding the defendant's failure to present the witnesses Houey and Langton was proper since the record shows both were seemingly accessible and the defendant's exception to it is overruled. Brito v. Company, 79 N.H. 163, 164; Beardsell v. Tilton School, 89 N.H. 459, 463.
The affidavits filed in support of the motion for a new trial do not indicate the nature of the testimony of the missing witnesses or that it would help the defendant. They do furnish evidence that the witness Houey could have been produced and the absence of Langton accounted for by the defendant. Had the facts set forth in the affidavits appeared at the trial it cannot be said as a matter of law that a different result would have been reached. The Court's denial of the motion for a new trial was warranted. No other exceptions being briefed or argued and none sustainable appearing in the record the order is
Judgment on the verdict.
All concurred.