Whether a case should be taken from the jury because counsel, in their presence, offer testimony which is not admitted, is a question of fact to be determined at the trial term. A town is liable for damages happening, by reason of a defective highway, to a person illegally travelling on Sunday, if the illegality of his act does not contribute to the accident.
BINGHAM, J.
Whether the case should have been taken from the jury on account of the offer made by counsel, was a question of fact to be determined at the trial term. Zollar v. Janvrin, 47 N.H. 324. Although the plaintiff violated the law by travelling on Sunday, she might recover if the illegality of the act did not contribute to the accident. Corey v. Bath, 35 N.H. 530, 541; Sutton v. Wauwatosa, 29 Wis. 21; Sewell v. Webster, 59 N.H. 586.
Judgment on the verdict.
STANLEY, J., did not sit: the others concurred.