Becker v. Philadelphia Rapid Transit Co. , 245 Pa. 462 ( 1914 )

Opinion by

Mr. Justice Elkin,

This is an action in trespass to recover damages for personal injuries resulting from the collision of two cars operated by the defendant company, in one of which cars the plaintiff, Anna Ruth Becker, was a passenger. At the trial there was no attempt to defend against the negligence charged, and the case was made to turn upon the extent of the injuries sustained. For this purpose medical testimony was introduced to show the extent and character of the injuries and how the plaintiff was affected thereby. The defendant called a physician who had examined the plaintiff, and this witness testified in detail as to her condition. There was nothing in his testimony to indicate that he was unfair in his statements or biased in his professional judgment. His testimony was straightforward and no attempt was made to impeach his veracity. This was the situation at the close of the testimony when counsel proceeded to argue the case to the jury. In his argument counsel for plaintiffs severely criticised the testimony of the physician called by defendant, saying among other things, “Will you believe the testimony of the physician for the Transit Company, whose business it is to minimize injuries?” At this point counsel for defendant called the attention of the court to the remarks complained of and moved for the withdrawal of a juror, whereupon counsel for plaintiffs said: “I stand upon that.” The motion was overruled and the case proceeded. This improper remark of counsel is made the subject of the first assignment of error.. If standing alone we might hesitate to reverse on this ground, but taken in connection with other matters complained of, we feel it to be our duty to admonish counsel that remarks of this character in making appeals to juries are highly improper and counsel making them do so at their peril. In recent years we have had occasion in several cases to remind counsel of the impropriety of making such appeals to the prejudice and sympathy of the jury: Wagoner v. Hazle Township, 215 Pa. 219; Saxton v. Pittsburgh Railway Co., 219 Pa. 492. This rule will not be relaxed but will be enforced. As was said by the present Chief Justice in Saxton v. Railway Company, above cited: “If courts are to continue to be places where justice is judicially administered, causes must be fairly presented and fairly defended, and the duty of counsel in this regard is not less important nor less imperative than that of the judge.” Remarks of counsel not warranted by the evidence are always improper, and especially so when the attempt is made to unfairly prejudice the minds of jurors.

The third and fourth assignments must be sustained. The questions can only be regarded as hypothetical and must of necessity be governed by the well defined rules applicable to questions of this character. In the present case counsel ignored the limitations of the rule in the examination of a witness called as an expert to express an opinion upon a state of facts developed at the trial. Nothing will be gained by a general discussion of this subject. For the purposes of the present case, we need only refer to Rouch v. Zehring, 59 Pa. 74, and Gilman v. Electric Railway Co., 224 Pa. 267, as a guide to all concerned when the case is again tried.

The first, third and fourth assignments of error are sustained.

Judgment reversed and a venire facias de novo awarded.