The duty imposed upon towns to keep their highways in suitable repair cannot be varied by proof of a custom to make repairs in a particular manner.
The admission of evidence wholly immaterial furnishes no sufficient ground for granting a new trial.
BLODGETT, J.
The customary action of the defendants in respect to snowdrifts in their highways was not admissible, either upon the question of the sufficiency of the highway whereon the injuries were received, or upon that of the plaintiffs' negligence; nor do we perceive its relevancy upon any issue between the parties which could have arisen at the hearing. Nevertheless its admission does not afford a sufficient ground for granting a new trial, inasmuch as it was incidental and introductory merely, and was so plainly irrelevant and immaterial that it is altogether improbable that it could have had any influence upon the mind of the referee. See Winkley v. Foye, 28 N.H. 518, 519; (Cook v. Brown, 34 N.H. 460; Tucker v. Peaslee, 36 N.H. 168; Barry v. Bennett, 7 Met. 354.
Exceptions overruled.
CLARK, J., did not sit: the others concurred.