Saint Louis, Iron Mountain & Southern Railway Co. v. Harrison , 76 Ark. 430 ( 1905 )

Wood, J.,

(after stating the facts.) The only reversible error we find in this record is the failure of the court to give instruction number seven. It was a close question on the evidence as to whether or not the assault made by the conductor was in self-defense, and in the discharge of his duty as conductor. These matters were fully and properly submitted to the jury, and we would not disturb their finding, because there is ample evidence to sustain it. But it is by no means true that the verdict was justified by the “uncontradicted testimony in the case.” On the contrary, the verdict might very well have been for appellant on the evidence, and it is impossible to tell what influence the improper argument of counsel, set out in the statement, might have exerted in producing the verdict. After appellant objected to it, and the court permitted the counsel to proceed, the argument was thus approved by the court, and went to the jury with the same force as an instruction from the court, to the effect that they might consider the negligence of the defendant, in writing the pass, if it was negligently written, in determining the liability of the defendant. The argument was exceedingly improper and prejudicial, and the court should not have permitted it, and especially after it had been permitted the court should have granted appellant’s seventh request, in order to counteract all possible damaging effect of such argument. This instruction, asked at that time, was an effort on the part of the appellant to have the court correct the improper argument of counsel, and nullify whatever prejudicial influence it might have had upon the jury. The appellant was clearly entitled to it, for the assault of the conductor on the passenger bearing the pass could never have been contemplated even as a remote consequence of any negligence in writing the pass. Such assault certainly could not be considered anywhere within the range of the natural, ordinary and reasonable, or even remotely probable, effect of negligence in making out the pass. St. Louis, I. M. & S. R. Co. v. Bragg, 69 Ark. 402; 1 Suth. on Dam. 57; McDaniel v. Snelling, 96 Mass. 295; Scheffer v. Ry. Co., 105 U. S. 252; Milwaukee & S. P. Ry. Co. v. Kellogg, 94 U. S. 475.

Ror the error indicated the judgment is reversed, • and the cause is remanded for new trial.