As the case is understood, the trial judge ruled' that the experimental evidence offered by the defendant, of the liability of the ice to frighten horses, was as a matter of law incompetent. In view of the settled law of this state (Darling v. Westmoreland, 52 N. H. 401; Gordon v. Railroad, 58 N. H. 396; D ow v. Weare, 68 N. H. 345; Folsom v. Railroad, 68 N. H. 454, 461), the evidence was clearly competent, unless it was too remote-as a matter of fact. But as the evidence was not excluded upon the ground of remoteness, but because legally incompetent (Challis v. Lake, 71 N. H. 90, 95; Watson v. Twombly, 60 N. H. 491, 493), the order must be,

Exception sustained.