Instructions to the jury upon the issue of contributory negligence, which assume to state fully the evidence upon each side of that issue, but which omit reference to material evidence in favor of the plaintiff, are erroneous, and, proper exception having been seasonably taken, a verdict for the defendant must be set aside.
MARBLE, J.
It was the province of the jury to decide the issues on all the competent evidence. The plaintiff claimed that Nadeau was thrown from his position on the step by a jerk or jar due to the sudden stopping of the train. This was a material issue in the case, and the evidence relating thereto was conflicting. To instruct the jury that their determination of this issue must depend upon whether they accepted the direct evidence of the two eyewitnesses or the inference to be drawn from "what Leveille saw and did not see," was in effect to exclude from their consideration the corroborative testimony of French with respect to the jar of the train and the shout that immediately followed.
While in cases of this kind "the precise line which bounds the discretion of the court may be difficult to define" (State v. Newman, 74 N.H. 10, 21), all the authorities agree that although the trial judge is not obliged to restate the evidence fully and exactly (Rollins v. Varney, 22 N.H. 99, 102), if he misstates it on an important matter to the prejudice of the complaining party, it is reversible error. 38 Cyc. 1656.
On the issue of contributory negligence the jury in the instant case were practically told that Leveille was the only witness whose testimony tended to prove that Nadeau had been thrown from the train. It is true that French's testimony was referred to later in the charge on the question of the defendant's fault. But the jury had been previously instructed that the question of Nadeau's conduct might be decisive of the case and that it would be logical to decide that question first. If the suggested procedure was followed, the jury may never have reached the point where, under the instructions as given, French's testimony could be considered.
It should be noted that this is not a case where a technical error has been discovered by "intensive study" and "severe critical analysis" (Mason v. Railway, 79 N.H. 300, 305) after verdict and under a general exception. Here, as in West v. Railroad, 81 N.H. 522, the grounds of the exception were specifically and seasonably stated. And just as in that case a new trial was granted because the charge "may have conveyed to the jurors an erroneous conception of the law," so in the present case the exception must be sustained because the charge may have conveyed to the jury a wrong conception of the evidence.
Since the verdict must be set aside for the reasons given, it is unnecessary to consider the other exceptions. The defendant argues, however, that all the exceptions are immaterial because a verdict should have been directed in its favor. It is a sufficient answer to this contention to say that the defendant's exceptions have not been transferred, and that the record before this court is admittedly incomplete.
Verdict set aside.
All concurred.