The Supreme Court of New Hampshire has applied this duty only to a plaintiff's acts performed subsequent to the event giving rise to her tort claim. See, e.g., id.; Perreault v. Allen Oil Co., 87 N.H. 306, 179 A. 365 (1935); Seeton v. Town of Dunbarton, 73 N.H. 134, 59 A. 944 (1905). Thus understood, this duty cannot apply to a passenger's decision to refrain from wearing a seat belt, a decision made prior to such an event.

Even though her serious pain and suffering was caused by the extraction, still the defendant is liable for it, because there is no evidence that the plaintiff was negligent in her choice of a dentist. This exception must also be overruled. Tuttle v. Farmington, 58 N.H. 13; Boynton v. Somersworth, 58 N.H. 321; Seeton v. Dunbarton, 73 N.H. 134. III.

At all events, what was said, "if incorrect, could be nothing more than an erroneous statement of law, which in the absence of evidence, it is presumed was corrected by instructions to the jury." Potter v. Moody, 79 N.H. 87; Curtis v. Railroad, 78 N.H. 116; Seeton v. Dunbarton, 73 N.H. 134, 137; Leavitt v. Company, 72 N.H. 290, 292. After the accident the plaintiff was taken down the elevator in a chair and helped out by the elevator man and another employee.

Such an error is correctible by the court in its charge to the jury; and it is the duty of the party against whom the erroneous rule operates to request the court to charge in accordance with the law; otherwise he is held to waive his objection. Seeton v. Dunbarton, 73 N.H. 134, 137; Lane v. Manchester Mills, 75 N.H. 102, 106; Potter v. Moody, ante, 87. Exceptions overruled: judgment on the verdict.

The instruction excepted, to, authorizing the jury to consider whether a signal by the whistle should have been given as the station was approached, was an application of the rule then announced. A question of law once decided is not reconsidered in the same case except upon a motion for rehearing. Seeton v. Dunbarton, 73 N.H. 134, 137; Olney v. Railroad, 73 N.H. 85, 91. As was said in the case first cited, "This matter was fully considered in the former opinion; and the facts now presented, if not identical with those then before the court, are not so materially different as to require a modification or new discussion of the legal principles then announced." It now appears that the station whistle was blown at a point about a half mile below the station, a fact which did not appear at the former trial.

In some jurisdictions it is held that in an action against the original wrongdoer, if a surgeon by mistake operates at a place other than at the seat of the injury and without the consent of the patient, such an act is a natural and probable consequence of the original injury for which the defendant is responsible. Martin v. Cunningham, 93 Wn. 517. Thompson v. Louisville Nashville Railroad, 91 Ala. 496. Sauter v. New York Central Hudson River Railroad, 66 N.Y. 50. Variety Manuf. Co. v. Landaker, 227 Ill. 22. Reed v. Detroit, 108 Mich. 224. Seeton v. Dunbarton, 73 N.H. 134. Lyons v. Erie Railway, 57 N.Y. 489. Goss v. Goss, 102 Minn. 346. See also Mohr v. Williams, 95 Minn. 261; Sullivan v. McGraw, 118 Mich. 39; Pratt v. Davis, 224 Ill. 300. The facts in the case at bar distinguish it from the cases above referred to.

The statement of counsel in relation to the postponement of the trial under certain rules, if incorrect, could be nothing more than an erroneous statement of law, which in the absence of evidence, it is presumed was corrected by instructions to the jury. Leavitt v. Company, 72 N.H. 290, 292; Seeton v. Dunbarton, 73 N.H. 134, 137; Curtis v. Railroad, 78 N.H. 116. Exceptions overruled.

Whether from these facts any inference could be drawn material upon the question tried, is a question of law upon which in the absence of exception as to the instruction of the jury it must be presumed proper instructions were given to and followed by them. Conn. River Power Co. v. Dickinson, 75 N.H. 353, 358; Seeton v. Dunbarton, 73 N.H. 134, 137; Leavitt v. Company, 72 N.H. 290. Exceptions overruled.

The remarks were statements of facts supported by evidence and were therefore proper. Story v. Railroad, 70 N.H. 364; Leavitt v. Company, 72 N.H. 290; Seeton v. Dunbarton, 73 N.H. 134. Later in argument, exception was taken by the defendants to the following statement: "Now, if you bring in a verdict, you should not bring in a small verdict; for if you give him $30,000, the interest at four per cent is only $1,200 a year income."

The case at bar is distinguishable from Snow v. New York, New Haven, Hartford Railroad, 185 Mass. 321, and cases of like nature. Reed v. Detroit, 108 Mich. 224. Lyons v. Erie Railway, 57 N.Y. 489. Loeser v. Humphrey, 41 Ohio St. 378. Selleck v. Janesville, 100 Wis. 157. Chicago City Railway v. Saxby, 213 Ill. 274. Seeton v. Dunbarton, 73 N.H. 134. O'Donnell v. Rhode Island Co. 28 R.I. 245. Hooper v. Bacon, 101 Maine, 533. Fields v. Mankato Electric Traction Co. 116 Minn. 218. 7. The instruction to the effect that in determining the amount of damages the jury might consider the amount of the plaintiff's "average earnings, his professional reputation and his special attainments in his profession" was not open to criticism.