(116 A.) based on a statement in opinion of Supreme | observe conditions as to light at the place of Court filed with the clerk, which statement was accident, stated that the case was brought in omitted from the subsequent printed opinion, so that they had notice that their contention would not be available to them at that trial, and could protect their rights by exception, they cannot contend on the second transfer that they were misled by that statement to their prejudice. 14. Appeal and error 1097 (1)-Questions generally not re-examined on subsequent transfer of same case. Questions once decided in the Supreme Court are not re-examined in the same case upon a subsequent transfer, unless there is some substantial reason for departing from that established practice. 15. Highways 198-Liability of selectmen not affected by acting on solicited advice of engineer. The advice of a division engineer to the selectmen, solicited by them under Laws 1905, c. 35, § 6, is not equivalent to an order to the selectmen, but requires them still to exercise their own judgment, so that acting on such advice does not relieve them from liability for injuries resulting therefrom, regardless of what the rule would be if the improvements were such as are required to be made upon the advice of the state engineer by section 3. 16. Appeal and error 263 (1)-Exceptions to the charge are necesary for consideration of instructions. Criticisms of the instructions that were given to the jury present no question, where no exceptions to the charge were taken. 17. Appeal and error 1060 (1) Counsel's misstatement of law not confirmed by the court does not require reversal. Even if a statement of the law by the counsel for the adverse party is not correct, it does not require reversal, unless such erroneous statement of the law was confirmed by the court. 18. Appeal and error 925 (3)-Party complaining must show confirmation of counsel's misstatement of the law. A party, complaining of misstatement of the law by counsel for the adverse party, must show that the error was confirmed by the court, and confirmation will not be presumed. 19. Appeal and error 1060 (1) Misstatement of immaterial evidence in argument does not require reversal. In an action against selectmen for injuries to plaintiff while leaving premises abutting on the highway, a misstatement by plaintiff's counsel that the abutting owner testified that he ac companied plaintiff to door on her departure, when only the plaintiff testified to that fact, was immaterial, and does not require reversal, since the owner would have been more apt to warn his visitor of the danger if he had accompanied her to the door. 20. Appeal and error 1060 (1)-Attorney's statement as to beginning of suit held substantially correct. Where plaintiff's attorney, in arguing the opportunity defendant's selectmen had had to 1914, so that the defendants were familiar with plaintiff's claims, when in fact the suit brought in 1914 was against the town, and the suit against the selectmen was not brought until 1916, the misstatement was of no substantial consequence, since either suit would give the selectmen knowledge of plaintiff's claims. 21. Trial 121 (2)-Counsel can argue that opponent's argument on supposition of duty was an admission. In an action against the selectmen for personal injuries to a traveler approaching the highway, plaintiff's counsel could argue that the argument on behalf of defendant's counsel, based on a supposition for the sake of argument, that defendants owed a duty in the premises, showed some weakness in defendant's position that they owed no such duty, since defendants were chargeable with admissions made by their counsel especially in the same trial. 22. Trial 121 (2)-Argument on improbability of advice contrary to statute held proper. In an action against selectmen for injuries to a traveler, where the defendants claimed to have relied on the advice of the state engineer, it was not improper for defendant's counsel to argue that the claimed advice by the engineer would have violated the statute, which he had read to the jury, and that it was therefore improbable that such advice was given. 23. Highways 210(1) -Advice of state engineer is material in determining whether selectmen acted with due care. Even though the solicited advice of state engineer does not relieve the selectmen of the duty to exercise their own judgment, the giving of such advice is material, in an action for injuries resulting from a defect in the highway, in determining whether the selectmen had acted with reasonable care. 24. Trial 121 (2) -Argument defense was not relied on at former trial held justified. Where the selectmen in a second trial for injuries to a traveler of the highways relied upon the advice of the state engineer as a defense, an argument by plaintiff's counsel that defendants did not rely upon the advice, but upon their own judgment, because they thought so little of the defense that they did not present it at the first trial, was justified, where one of the defendants at the second trial had attempted to excuse his failure to testify at the first trial concerning the advice by claiming an interruption of plaintiff's counsel which was not shown by the record. 25. Trial 131 (2)-Right to reply to plaintiff's closing argument must be claimed at trial. Where defendants contend that the closing argument for plaintiff was so unexpected, fallacious, and overpersuasive that they should have been given an opportunity to reply thereto, they must ask for such relief before the trial closed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Transferred from Superior Court, Hills- | they did the plaintiff could not recover. And borough County; Branch, Judge. Actions on the case for negligence by Elizabeth A. Robertson and Charles E. Robertson against Fred B. Monroe and others. Verdicts for plaintiffs, and cases transferred on defendants' exceptions. Exceptions overruled. This is the same action heretofore reported (79 N. H. 336, 109 Atl. 495), and the essential facts as to liability appeared as at the first trial. Evidence of what was done by the defendants in the fall of 1913 was excepted to by the defendants upon the ground that when or how the condition that existed at the time of the accident was created was immaterial. There were also exceptions to the refusal to give requested instructions to the jury and to the closing argument for the plaintiff. These are stated in the opinion. Robert W. Upton, of Concord, for plaintiffs. Taggart, Tuttle, Wyman & Starr, of Manchester, and L. E. Wyman, of Manchester, for defendants. PEASLEE, J. The defendants' exception to the refusal to limit the use of evidence as to how the situation complained of was created in 1913 presents the same question that is involved in one of their requests for instructions to the jury, and is considered in connection therewith. The requests now relied upon are summarized by counsel as follows: That the selectmen could not be found liable for not providing an approach which the town for which they were acting was not obliged to provide. That the doing of the work as such was distinct from the condition at the time of the injury. That as the permanent repair of a highway must by statute be made under the advice of the state engineer the defendants are not liable if they follow the engineer's advice. That if under the advice of the state engineer the changing of the grade destroyed the approach, neither the town nor the selectmen who did the work were liable. [1] As far as the first request was applicable to the case, it was included in the instructions given to the jury. They were specifically instructed that the plaintiff could not recover upon any theory that the abutter's rights had been invaded by removing or failing to restore his means of approach. The only theory upon which a verdict of fault upon the defendants' part in relation to what was done in the fall of 1913 could be found under the charge was that in cutting across the driveway, either as a temporary or as a permanent change, they negligently created and left a situation likely to prove dangerous to travelers. The jury were told in terms that if the defendants were free from fault in leaving the highway in the condition fault in this connection was fully explained as meaning negligent conduct creating a dangerous situation. The charge assumes throughout that, as far as this plaintiff is concerned, the selectmen had a perfect right to cut off the approach in a reasonable and prudent manner. [2] Liability or nonliability of the town for the accident is not a test by which to determine the accountability of these defendants. Neither is the alleged rule of law that the town was not under obligation to the abutter material. Injecting these matters into the consideration of the question of liability in this suit would only tend to confuse the jury. The complaint is not for failing to provide an approach, but for leaving what might appear to be an approach in a dangerous condition. The question for the jury was whether there was "a probability that persons having knowledge of the former existence of the driveway or misled by the indications on the abutting land would attempt to cross at this point from the adjoining land to the traveled path." Robertson v. Monroe, 79 N. H. 336, 343, 109 Atl. 495, 499. The case was properly submitted to the jury on this theory. [3] The next request which is now relied upon, together with the exception to the use of certain evidence, presents the question whether selectmen who negligently create a dangerous situation in a highway are liable under Laws 1893, c. 59, § 1, for injuries to a traveler which are suffered after the selectmen go out of office. Proof that a third party negligently failed to perform a common-law duty to the plaintiff to avert the probable results flowing from the defendants' negligence in creating a dangerous situation is not an answer to this suit. "It is suggested the adjoining landowner was in fault in not closing or obliterating the driveway or in neglecting to warn the plaintiff. Assuming this to be so, his negligence would not prevent a recovery against others whose negligence was cause for the injury." Robertson v. Monroe, 79 N. H. 336, 343, 109 Atl. 495, 499. [4] The foregoing statement relates to the neglect of the abutter to care for the safety of those upon his premises. As to neglect to care for the highway, no acts of third parties are here involved. The question whether the intervening negligence of a third party in that respect would be such a break in the chain of causation that the negligent making of the ditch could no longer be treated as a legal cause of the accident does not and cannot arise upon the facts as to this aspect of the case. If there was intervening negligence in not guarding or filling the ditch, it was that of these defendants, and the verdict against them then properly stands upon that ground. If they are liable for this later (116 A.) negligence, it is immaterial whether they are ed to be a source of danger, and in fact resulted in the injury complained of. Authorities elsewhere treating the question of proximate cause as one of law are not in point here; for in this state the question whether an existing condition, the absence of which would have made an accident impossible, is to be treated as the legal cause of the accident, is one of fact. Ela v. Postal Tel. Cable Co., 71 N. H. 1, 51 Atl. 281, and cases cited; Pritchard v. Boscawen, 78 N. H. 131, 97 Atl. 563, and cases cited. [8] However the rule may be as to intervening negligent acts, or negligent failures to avoid apparent consequences, as breaking the chain of legal causation, the rule here is entirely clear that when the intervening conduct is lawful, the question of proximate cause is for the jury if reasonable men in the defendants' situation might have anticipated some such train of events as that which ensued. Ela v. Postal Tel. Cable Co., supra. [9] The liability here invoked is a statutory one, and the language used was manifestly intended to make it as broad and continuing as the chance of injury. The purpose was to substitute a primary liability of the person (official or otherwise) who caused the defect for the previously existing liability of the town. Robertson v. Monroe, supra. There is nothing novel in the imposition of such a burden. Leaving the highway in an unsuitable condition was in effect creating a nuisance. Thomas v. Harrington, 72 N. H. 45, 54 Atl. 285, 65 L. R. A. 742. One who creates a nuisance may be liable at common law for damages resulting therefrom although the injury may have been inflicted after he has parted with both title to and control over the locus of the nuisance. Curtice v. Thompson, 19 N. H. 471; Eastman v. Amoskeag Mfg. Co., 44 N. H. 143, 156, 82 Am. Dec. 201. "No case is to be found, in which it has been doubted, that he, who erects a nuisance, continues liable as long as the nuisance continues." Plumer v. Harper, 3 N. H. 88, 92 (14 Am. Dec. 333). [10] It is true, as the defendants claim, that negligence in creating the situation and negligent failure to provide lights or barriers are distinct grounds of complaint. But if both may have existed, there is no reason why the plaintiff might not rely upon each and recover upon one or the other as the facts should prove to be. [6, 7] The statutory duty of the defendants to exercise care extended to all those with whom the situation brought them into relation. Garland v. Railroad, 76 N. H. 556, 86 Atl. 141, 46 L. R. A. (N. S.) 338, Ann. Cas. 1913E, 924. This included all travelers whom they ought to have anticipated might be affected by their conduct. It is manifest that the future effect of their present conduct upon others would not be terminated or affected by the fact that at some intermediate time they ceased to be in office. How remotely this relationship shall be traced, how far the chain of causation shall be fol- The suggestion that if others had been lowed as a matter of legal liability, is with elected selectmen in March, 1914, these deus a question of fact. As a general rule, fendants would not have been liable for the when the fault to which an injury is traced failure of their successors to provide lights is one for the creation of which a defendant or barriers is sound. But it does not affect is responsible, it is no defense for him to the present situation. As before pointed show that at the time of injury it was be- out, the later negligence being in this case yond his power to remedy the wrong which that of the defendants, it is of no consehe had theretofore done, and which continu-quence upon the question now presented whether it existed or not. If it existed the plaintiff could recover for it in this suit. But since the jury might find that it did not exist, the plaintiff was entitled to also present her evidence of the earlier fault, even if it be assumed that the existence of later fault would make the earlier one immaterial. Under the statute as interpreted in the former decision, the law imposed a duty upon these defendants for the plaintiff's benefit, in 1913. When they were re-elected in 1914 it imposed upon them a similar duty. If they violated either duty the plaintiff may recover. If they violated both, she can recover for the later wrong in any event. She was not bound to bring one suit to recover for negligently making the ditch in 1913 and another for negligently failing to light it in 1914. The several wrongs resulted in one injury for which one recovery only can be had; and the plaintiff was entitled to present all her grounds in one suit. Monroe v. Connecticut River Lumber Co., 68 N. H. 89, 39 Atl. 1019. [11] The defendants here rely chiefly upon an expression contained in the original draft of the opinion upon the former transfer of the case, but omitted from the official report. As between these, the printed reports are final. The opinions filed with the clerk at the time an order is made (Laws 1901, c. 78, § 4) are comparable to the "full and accurate notes of each decision announced, and of the grounds and reasons assigned therefor," which, under the earlier practice, were to be taken by the state reporter when the decision was rendered. P. S. c. 214, § 4. It was the duty of the court then, as now, to furnish the reporter a copy of the opinion in the case within 60 days. P. S. c. 214, § 2; Laws 1901, c. 78, § 16. The statutory direction that the opinions so furnished shall be published by the reporter (P. S. c. 214, § 7) shows that such opinions, rather than the reporter's notes taken under the old law, or the opinions filed with the clerk under the new, are the final and authoritative record of what was or was not decided, and of the reasoning relied upon to sustain the conclusions reached. [12] The statement which was finally omitted was to the effect that "when or how the condition was created is immaterial." This was said in the course of the consideration of the road agent's liability. As the ground for liability is negligence and not trespass, it was concluded that the road agent was not liable because he was merely "obeying the directions of those in authority over him." As to him it was said that, "When or how the condition was created is immaterial." If the statement had remained in the opinion as finally settled, it would not affect the result here. It was not made in reference to the liability of the 'selectmen. upon the opinion filed with the clerk, construed it as applying in this respect to their case, and so, without fault on their part, took a position which has resulted in depriving them of a fair trial. It is not apparent how such a conclusion can be reached. The presiding justice ruled against their contention. They then had notice that the position taken would not be available to them in that trial, and their exception fully protected their rights in the premises. It is not claimed that any other defense was abandoned or neglected in reliance upon this one. An examination of the record clearly negatives any such idea. [14] It is further urged in support of this exception that the former decision draws an unwarranted distinction between the liability of the selectmen and that of the road agent. Questions once decided in this court are not ordinarily re-examined in the same case upon a subsequent transfer. Whittemore v. Railroad, 77 N. H. 61, 86 Atl. 824; Id., 77 N. H. 593, 90 Atl. 601. The arguments now advanced were presented upon the former transfer. As then pointed out, the claim that the discretion to be exercised by the selectmen may be a judicial one is not an answer to a liability expressly imposed by statute. "As the statute makes them liable, commonlaw rules relieving public officers from liability are not in point. That the plaintiff was injured in the exercise of a public right, or that the officers acted judicially-considerations important in ascertaining the existence or otherwise of a common-law liability-do not repeal the statute." Robertson v. Monroe, 79 N. H. 336, 342, 109 Atl. 495, 499. The distinction between the situation of the selectmen and that of the road agent is that the former were under a duty to exercise judgment and discretion, while the latter had merely to obey orders. There seems to be no substantial reason for departing in this instance from the established practice concerning questions that have been once decided in the same case. [15] The remaining requests relate to the advice of the state authorities as a defense. The provision that in the application of certain funds appropriated by the town for permanent highway improvements "such improvements shall be made under the advice of the state engineer" (Laws 1905, c. 35, § 3) is not involved here. If it be assumed that the town ought to have proceeded under this section, the fact is that it did not do so. What the selectmen did was to apply for and receive the free service of a division engineer employed by the state, "for the purpose of consultation and advice concerning the construction, improvement and repair of the highways in such town." Id., § 6. Whatever may be the rule as to proceedings under sec (116 A.) the provisions of section 6 is not the equiva- [ not material to the issue of liability as sublent for an order to the selectmen or to the mitted to the jury, or whether his statement town. It follows that the requests to charge that he did not rely upon the statute to make that the advice, if followed, freed the defend- out his case would cure the error, if one was ants from liability were rightly refused. It committed. Butler v. Webster, 79 N. H. 125, was still the duty of the selectmen to exer- 106 Atl. 283. cise their own judgment. [16] The defendants also criticize the instructions that were given to the jury. As no exceptions to the charge were taken, the questions suggested by this part of the argument are not before the court. [17] Exceptions were also taken to the closing argument of counsel for the plaintiff. In opening the case for the defendants counsel stated that, as against the abutter, the defendants had the right to take away the approach. Plaintiff's counsel replied: * and "That is not strictly the law, * in order that that situation may be cleared up I want to refer to Public Statutes, c. 73, § 23, which reads that: 'In repairing highways, no uncovered trench or ditch shall be made by the side of the traveled part thereof next and opposite to a dwelling house, yard, or private way leading into any field, land, or inclosure on the highway; nor shall the highway be repaired in any other manner to obstruct the passage to such house, yard, or private way.' * * * I speak of this because it is not true, as stated by defendants' counsel, that these selectmen in repairing the highway had a right to take out that driveway. But our claim is not based upon that statute, but on another." It is important to bear in mind that the controversy here is not one concerning inadmissible facts injected by counsel on one side and denied upon the other (Knapp v. Stone, 79 N. H. 32, 103 Atl. 1005), but concerning the law governing the case. The defendants sought to justify their conduct by claiming that the act of removing the driveway, or constructing a ditch, was legal. The plaintiff denied this statement of law. "If counsel errs in his view of the law applicable to the facts, and urges the drawing of unwarranted inferences therefrom, so long as he makes no statement of fact outside the evidence a verdict in his favor will not be disturbed unless the court expressly or tacitly confirms his erroneous view of the law." Story v. Railroad, 70 N. H. 364, 376, 48 Atl. 288, 292, and cases cited. [18] Such confirmation of the error must be made to appear. It is not to be presumed. Watts v. Derry Shoe Co., 80 N. H., 114 Atl. 859, and cases cited. In the present case all the evidence upon the subject is before the court, for the charge is reported in full. It appears from the record that the jury were instructed that there could not be a recovery upon any theory that the rights of the abutter had been violated. It is therefore unnecessary to consider whether the plaintiff's counsel was using a proper argument when he denied the defendants' assertion as to a proposition of law which was 116 A.-7 [19] In detailing the testimony as to what took place between the plaintiff and Holman just as she left his house, and in discussing the testimony of both that Holman did not warn her to look out for the driveway, counsel stated that Holman testified that he accompanied her to the door. In fact the plaintiff so testified, but Holman did not. Upon exception being taken, counsel said he was merely giving his recollection of the evidence. So far as the fact in controversy (Holman's coming to the door) was material, its existence would be favorable to the defendants. His testimony that he saw no team and gave no warning would be less probable if he went to the door than if he did not. The plaintiff's counsel made no particular point of Holman's movements, and based no argument upon the alleged going to the door. It is apparent that the error was an inconsequential one, for which the verdict should not be disturbed. Guaranty Trust Co. v. U. S. Fidelity & Guaranty Co., 79 N. H. 480, 112 Atl. 247. While the misrecollection and honest misstatement of the evidence ordinarily presents a question of fact as to the fairness of the trial (Benoit v. Perkins, 79 N. H. 11, 104 Atl. 254), there is no such question to be decided when it affirmatively appears that the error was a harmless one. Parker v. New Boston, 79 N. H. 54, 104 Atl. 345. The record showing that the error was harmless, a finding that the trial was thereby rendered unfair could not be sustained. our [20] In arguing the opportunity the defendants had had to observe conditions as to light at the place of accident, counsel states that "This case was brought in 1914. These defendants are familiar with claims." The suit against the town was brought in 1914, and this suit in 1916. The trial was in 1921. It appeared that in 1914 the defendants knew the plaintiff made claim against the town of which they were the prudential officers. This error is also a harmless one. The only importance of the dates was to show that the defendants had for some years known of the plaintiff's claim. Whether that knowledge extended over only five years rather than seven, or whether it came from notice of a suit against the defendants, or of one against the principal whose interests they were bound to care for, is of no substantial consequence. Cote v. Michou, 80 N. H., 113 Atl. 210, which is relied upon by the defendants as to the two remarks last considered, is not in point. In that case "the erroneous statement did not concern an immaterial and inconsequential matter, but related to a point |