Potter v. Cave , 123 Iowa 98 ( 1904 )

McClain, J.

The plaintiff, a woman of about eighty-three years of age, accompanied by her daughter, came into defendant’s store for the purpose of trading, and, being attracted by the sound of music from a graphophone, walked forward with the object of getting nearer to it, and in doing so inadvertently stepped off into a stairway descending from about the center of the store to the basement, and received severe injuries, consisting principally in the fracture of the bone of her leg. In her petition she alleges the negligence of defendant in having the entrance to the stairway insufficiently lighted and guarded, and her own exercise of due and reasonable care and caution; and she asks damages for the injury resulting from her fall. Errors are assigned as to misconduct of counsel in argument, also in admission .of incompetent evidence over objection, and the giving of erroneous instructions to the jury.

i. misconduct argument.' I. The complaint as to the argument of counsel is that, in opening the case, the attorney for plaintiff stated his purpose to prove defendant’s knowledge of the dangerous condition of the stairway by showing that previous accidents had occurred there, and that defendant had been warned by others that it was dangerous; and that in the closing argument the attorney commented on the fact that counsel for defendant had made objections to the introduction of evidence to show previous accidents and warnings, which objections had been sustained by the court; and that the attorney for plaintiff, in replying to some objection by attorney for defendant to this line of argument, insisted that the jury had a right to consider the conduct of defendant’s counsel, with reference to getting the question before the jury, in determining the honesty of th¿ testimony for'defendant that the stairway was not a dangerous place. It appears from' the record that, after making the statements in opening which were objected to, the counsel for plaintiff asked the jury not to consider them, and perhaps, in so doing, lie cured the error, if any, which was involved in such statement. We do not hold, however, that the statement in itself was such prejudicial error as would warrant a reversal. It not infrequently happens that, in opening a case, counsel make statements of intention to prove matters as to which the evidence is subsequently rejected by the court, and where the statement is not unreasonable in itself, but is made in good faith, we would not hold that error was committed, even though the court should afterward properly exclude the evidence relied upon. But the conduct of counsel in arguing to the jury, in effect, that objections made to evidence by counsel for defendant were practically an admission that the facts as to which evidence was thus objected to and excluded were true,' and would have been proven had the objection not been made, was certainly most reprehensible. If counsel cannot make objection to the competency of evidence without being held up before the jury as improperly attempting to exclude the true facts from their consideration, then, indeed, the administration of justice in jury cases in accordance with rulings on the law and the evidence is practically impossible. This line of argument was pursued in disregard of objections interposed on behalf of appellant. Such action on the part of counsel was misconduct tending to prevent a fair trial and warranting a reversal. Nothing which the court could do would have removed the resulting prejudice. *

a Evidence-conversions, II. Complaint is made of rulings of the court in excluding testimony as to what plaintiff and her daughters said to each other when the daughter first reached her mother at the ^le stairway, where the latter was found immediately after her fall. The questions were objectionable as calling for a' conversation, and objection to one of them was properly sustained on the ground that it was leading. Without regard to whether exclamations or statements made by plaintiff at this time might have been admissible as part of the res gestae, it is clear that questions calling merely for a conversation between plaintiff and her daughter were properly objected to.

Evidence, III. Throughout the trial, except in one instance, the court consistently sustained objections to evidence offered for plaintiff to show previous accidents on this stairway and warnings to defendant that it was dangerous. These rulings were undoubtedly correct. Hudson v. Chicago & N. W. R. Co., 59 Iowa, 581; Mathews v. Cedar Rapids, 80 Iowa, 459; Croddy v. Chicago R. I. & P. R. Co., 91 Iowa, 598. The question was not as to whether defendant had reason to believe the stairway to be dangerous, but whether it was in fact maintained in a dangerous condition. If dangerous in fact, his knowlédge would be immaterial. But one witness for plaintiff was asked whether she had communicated to defendant, or any of his employes or servants in the store building, information with reference to the dangerous condition of the stairway, and defendant’s objection to this question as calling for evidence that was incompetent and immaterial, and which would not tend to prove any material issue in the case, was overruled. Whereupon the witness answered that she had given such information to an employe of defendant in the store about six months before the accident. The admission of this testimony was erroneous.

IV. The errors assigned and argued with reference to the instructions given do not relate to propositions of law stated therein, but rather to the action of the court in sub 'mithing to the jury the questions of negligence and contributory negligence, as to which it was claimed there was no evidence. But as the evidence may not be the same on another trial, we refrain from expressing any view as to its sufficiency.

Since the taking of the appeal plaintiff has died (so tar as appears, not as the result of this injury), and on proper application her administrator is substituted; but-in this opinion we have treated the case as though it were still pending in this court with the same parties as when tried in the lower court. — Reversed.