Walker v. Boston & M. R. R thereby injured, then she was guilty of contributory negligence, and cannot recover in this case. There was evidence to the effect that the cars were in motion when plaintiff attempted to board them, and that she was directed to board them at the time she did. True, this evidence was introduced by plaintiff herself, but it was in the case, and the jury was properly instructed on this feature. There is no claim that the instructions were contradictory, and we give that point no consideration, further than to state it. Some of the answers to the special findings were modified by the trial court, but with the modification there is nothing in them inconsistent with the general verdict. Indeed, nearly if not quite all the interrogations were objectionable, and there would have been no error in refusing to submit them. There is nothing in the answers to indicate that the jury was influenced by passion or prejudice in returning the verdict. No prejudicial error appears, and the judgment is affirmed. WALKER V. BOSTON & M. R. R. (Supreme Court of New Hampshire, Rockingham, April 1, 1902.) Injury to Passenger-Damages—Mental and Physical Suffering— Same-Apprehension of Insanity. Inasmuch as apprehension of insanity caused by mental disability owing to her injuries would be an element of plaintiff's damages, the requested instruction was erroneous. Exceptions from Rockingham county. Action by Alice B. Walker against the Boston & Maine Railroad. Verdict for plaintiff, and case transferred from the superior court on defendants' exceptions. Exceptions overruled. The plaintiff, a passenger, claimed that she was injured by the sudden starting of the train when she was leaving the car. The plaintiff's evidence tended to prove that she and her sister attempted to leave the car within a reasonable time after the train stopped. On cross-examination the sister *As to the right to recover for mental and physical suffering, see preceding case and foot-note. Walker v. Boston & M. R. R testified that as she stepped from the car she heard some one say: "You started without orders. You'll hear from this." This remark was not responsive to any question, and there was no evidence connecting it with the defendants. The conductor, engineer, and brakeman were called by the defendants, and the conductor and brakeman were asked if they heard this remark. The train consisted of an engine, baggage car, and two passenger coaches. The plaintiff's counsel, in his closing argument, said: "The plaintiff's sister said she heard some one say: 'You started without orders. You'll hear from this.'". The defendants' counsel claimed an exception. The plaintiff's counsel said, "Except, if you want to," and proceeded as follows: "You will remember that the defendants asked their conductor and brakeman if they heard any one make this statement, and their denial, but that they did not ask this question of their engineer. If they had asked him, he would have said that he heard it. This shows that the brakeman was not where he said he was when the accident happened; for, if he had been, he, as well as the engineer, would have heard it." There was evidence that the plaintiff is suffering from partial mental disability, induced by the shock, and that this partial disability may become total. The plaintiff's counsel argued that she was liable to become insane, and asked the jury to consider her mental condition, on the question of damages. The defendants requested the following instructions, which were denied, subject to their exception: "In assessing damages the jury cannot take into consideration any apprehension of insanity; neither can they consider the prospect of insanity." On the question of damages the jury were instructed as follows: "If you come to that question, you will give her as damages so much money as will fully compensate her for all loss of time and money she has or may hereafter suffer, and for all the pain, both physical and mental, which she has or may hereafter endure, as the direct, natural, and probable result of the defendants' fault, as the evidence discloses it to you. If you find that she has nervous prostration, induced by dwelling upon her claim against the railroad, and on the probable result of her suit, you will not consider it in assessing her damages. In assessing her damages, you will only consider the physical injury she actually received, and the mental pain and suffering which resulted directly from the injury. You will not consider any fictitious pain and suffering due to a disordered imagination, for she can only recover for actual, and not imaginary, pain." Dwight Hall and Emery & Simes, for plaintiff. PARSONS, J. The requested instruction was, so far as applicable to the evidence, covered by the instructions given. Upon the question of damages for future physical and mental pain, the jury were limited by the instructions given 3 RRR-6 Walker v. Boston & M. R. R to such suffering as was shown to be the direct, natural, and probable result of the defendants' fault. When the legal principle governing a case is fully stated in general terms, it is not error of law for the court to refuse instructions upon its application to particular evidence. The substance of the requested charge having been given, it is no ground of exception that it was not repeated, or that a particular form of expression was not used. Rublee v. Belmont, 62 N. H. 365; Chase v. Chase, 66 N. H. 588, 592, 29 Atl. 553. There was evidence that the plaintiff was suffering from partial mental disability. If, as the result of mental disability induced by the defendants' fault the plaintiff suffered from apprehension of insanity, such suffering was an element of her damages. The instruction, if given in the form requested, would therefore have been erroneous. The argument in support of the exception is founded upon the meaning of the word "may" in the following statement in the case: "There was evidence that the plaintiff is suffering from partial mental disability induced by the shock, and that this partial disability may become total." Whether the word was used in the strict sense claimed, meaning that the evidence did not tend to prove a probability, but only a possibility, of total insanity, is at least open to serious doubt. Whether the meaning attached by the defendants is the one intended is not material, because their contention as to the proper rule upon their understanding of the word is fully covered by the general instruction limiting the consideration of the jury to such future suffering as the plaintiff may endure as the probable result of the injury. It could fairly be inferred that in stating the evidence the court used the word "may" with reference to the connection in which it was used in the charge. However this may be, this court is not obliged to resort to the study of derivations or definitions, or to employ the principles of judicial construction to ascertain the meaning of a case transferred. If there is doubt, an amendment of the case furnishes a convenient and certain solution of the difficulty. As the defendants, instead of moving to reject the voluntary incompetent statement of the plaintiff's sister, called witnesses to dispute it, and thereby made an issue of her credibility, it was proper for counsel to discuss any competent evidence in the case bearing upon the question; but the assertion as a fact by the plaintiff's counsel, in his closing address to the jury, that the engineer, if he had been asked, would have said that he heard the statement of which the plaintiff's sister had testified, was incompetent testimony, which, introduced under exception, is fatal to the verdict. Power Co. v. Clough, 70 N. H. 627, 47 Atl. 704; Bullard v. Railroad, 64 N. H. 27, 5 Atl. S38, 10 Am. St. Rep. 367. If, instead of stating to the jury as a fact what the engineer would have said if inquired of, counsel asked the jury to infer, from the fact that the defendants' counsel did not ask the engineer this Beveridge v. Lewis question, that he did not ask it because he knew the answer would be as stated, the argument is within the limits of legitimate advocacy. Mitchell v. Railroad, 68 N. H. 96, 117, 34 Atl. 674. From the "case" it may be inferred that the exception covers everything said by counsel which is reported, and that the remark in question was not a request for an inference by the jury, but a statement of a fact. Whether the statement was made in one way or the other, and whether all that is reported was said subject to exception, are questions of fact for the trial court. Edwards v. Tilton Mills, 70 N. H. 574, 576, 50 Atl. 102. Legal fairness of trial requires that counsel apparently trespassing upon the rule prohibiting the introduction of unsworn testimony in argument should assume the burden of establishing his freedom from fault. amendment of the case having been procured, which establishes that the suggestion of counsel to which objection was taken was understood to be a request to the jury to infer from the facts proved what the testimony of the engineer would have been, and not as a statement of that fact as within his knowledge, the argument is not objectionable. Mitchell v. Railroad, supra. Exceptions overruled. WALKER, J., did not sit. The others concurred. An BEVERIDGE v. LEWIS. (Supreme Court of California, Feb. 25, 1902.) [67 Pac. Rep. 1040.] Eminent Domain-Damages—Right of Jurors to Exercise Individual Judgment. An instruction that the jury, in estimating damages to land taken, "are permitted to exercise, in weighing the evidence, their individual judgment as to values on subjects within their knowledge which they have acquired through experience and observation," was not erroneous. Same Benefit to Land Not Taken.* In condemning land for a railroad the jury may consider benefits to the land not taken, though such benefits also accrued to other land in the vicinity. Same-Assessing Damages Irrespective of Benefits-Constitutional Law. Const. art. 1, 14, providing that where a corporation, other than municipal, seeks to condemn land, the damages shall be assessed irrespective of benefits derived from improvements, is contrary to the fourteenth amendment of the federal constitution, forbidding a state to deny to any "person" the equal protection of the law. Department 2. Appeal from superior court, Los Angeles county; W. F. Fitzgerald, Judge. *See 4 Rap. & Mack's Dig. 709 et seq. Injury to land not taken, see Union Term. R. Co. v. Peet Bros. Mfg. Co., 13 Am. & Eng. R. Cas., N. S., 851. See also, note at end of case. Beveridge v. Lewis Proceedings by Philo J. Beveridge against Mary A. Lewis for the condemnation of a right of way. From the assess ment of damages, the defendant appeals. Affirmed. Lynn Helm, for appellant. John D. Pope, for respondent. MCFARLAND, J. The plaintiff, a natural person, having obtained a franchise to construct and operate a certain railroad, commenced this action to condemn a right of way for a part of its line of railway through the land of defendant. the trial court plaintiff had judgment, from which, and from an order denying her motion for a new trial, defendant appeals. In The main question in the case relates to the amount of compensation which the appellant was entitled to for the value of the land taken and damages for land not taken. The jury found the value of the land taken to be $429; damages to the land not taken, $2,000; and for costs of fences and cattle guards, $233.84. It also found that the benefit from the construction of the railroad to the land not taken was $500. Upon this basis the court fixed the amount to be paid appellant at $1,929, which appellant contends was too small. There are one or two minor matters to be disposed of. Appellant contends that the court erred in not sustaining her challenge to the juror Newell. On this point it is sufficient to say that, after considering all the testimony of the juror, we cannot say that the court erred in holding that he had not such an unqualified opinion about any question in the case as to make him an unfit juror. It is contended that the court erred in instructing that in estimating damages "the jury are permitted to exercise, in weighing the evidence, their individual judgment as to values upon subjects within their knowledge which they have acquired through experience and observation." Although this instruction seems, at first blush, to be somewhat questionable, yet it does not go as far as appellant claims. It is not an instruction that the jury may shut their eyes to the evidence before them, and decide the case according to their own notions. It, in effect, merely tells them that "in weighing the evidence" they may do, what jurors always do,-exercise their judgment in the light of their own general knowledge of the subject about which evidence has been introduced. This statement has been frequently sanctioned by courts. This court itself said in Cederberg v. Robison, 100 Cal. 93. 34 Pac. 625,-almost in the very language of the instruction here assailed, that "jurors are permitted to exercise their individual judgments as to values presumptively within their own knowledge, which they have acquired through experience or observation"; and it approved that ruling in Butler v. Ashworth, 102 Cal. 663, 36 Pac. 922. In Patterson v. City of Boston, 20 Pick. 159, Chief Justice Shaw said: "Jurors |