Opinion
Decided May 4, 1926.
CASE, for malpractice. Trial by jury and verdict for the defendant. Transferred by Doe, J., on exceptions to the exclusion of evidence and to the refusal to grant requests for instructions.
Arthur B. Hayden, for the plaintiff.
Irving E. Forbes and Doyle Doyle, for the defendant.
In the absence of brief or argument for the plaintiff, no error is apparent in the exclusion of evidence, and the exceptions thereto are overruled. Barsantee v. Hartford, 73 N.H. 616; Drake v. Insurance Co., 78 N.H. 604.
As to the other exceptions, none of the evidence is transferred. It is therefore impossible to say what the evidence tended to show relative to the defendant's duty and liability, and it cannot be told from the case or its amendment whether the requests, either all or some, should have been granted. It does not appear whether they were applicable to the evidence. Since requested instructions, although correctly stating rules of law, are properly refused when they are inapplicable to the facts disclosed by the evidence (Rowell v. Chase, 61 N.H. 135; Douyette v. Railway, 69 N.H. 625; Wheeler v. Railway, 70 N.H. 607; Saucier v. Company, 72 N.H. 292;Hart v. Railroad, 72 N.H. 410; Terrell v. Payne, 81 N.H. 164, 168), the failure to transfer the evidence leaves the propriety of the requests incapable of decision, and examination of their validity as legal propositions is therefore uncalled for.
Exceptions overruled.