St. Louis Southwestern Railway Co. v. Boyd , 40 Tex. Civ. App. 93 ( 1905 )

This suit was brought by appellee against appellant in the court below to recover damages for personal injuries alleged to have been received by appellee on the 13th day of June, 1903, through the negligence of appellant in a collision between a hack which appellee was driving, and some cars which were being switched by appellant on one of its switch tracks on Oak Street, in Texarkana, Texas.

Appellant pleaded a general denial and contributory negligence on the part of appellee. A trial before a jury resulted in a verdict and judgment for appellee in the sum of $10,000.

Appellant's twelfth assignment of error complains of the action of the court below in overruling its motion for a new trial, based upon the ground that appellee's counsel, in his argument to the jury in his behalf, used language in violation of the rules of the courts of this State regulating arguments upon the trial of causes, and which language was not supported by the evidence in the case, and that same appealed to the self-interest of the jury as a part of the public, and enlisted in appellee's behalf the public interest and aroused their prejudices against appellant, and appealed to the jury upon considerations other than the merits of the case, to return a verdict for appellee. The language complained of by this assignment is as follows: "The public is interested in a matter of this kind. If a man is injured under these circumstances (on a street crossing by backing cars) and gets only partial damages, then the public suffers and the law is defeated to the extent that he fails to get full compensation. It looks like the railroad company is willing to let this state of affairs go on and fight the cases where they inflict injuries, rather than go to the expense of having a watchman on this street to protect the public. Therefore, I say the public is interested in a case like this."

Rule 39 for the District Courts provides that counsel shall be required to confine the argument strictly to the evidence and to the argument of opposing counsel; and Rule 41 for said courts provides that the court will not be required to wait for objections to be made when the rules as to arguments are violated, but should they not be noticed and corrected by the court, opposing counsel may ask leave of the court to rise and present his point of objection. The argument that the public is interested in a matter of the kind being tried and under consideration by the jury, was not warranted by the evidence; and in connection with the language "if a man is injured under these circumstances and gets only partial damages then the public suffers and the law is defeated to the extent that he fails to get full compensation," was an unauthorized appeal to the self-interest of the jury, and to their duty as good citizens to safeguard and protect the interest of the public by rendering a verdict in a large amount in favor of the plaintiff. The jury are, in effect, told that if they failed to render a verdict giving the plaintiff full compensation they would be recreant in their duty, as good citizens, to the public, and that in consequence thereof the public would suffer.

It is difficult to imagine a character of appeal that would address itself with greater force to the judgment and conscience of a jury than this. The language, "It looks like the railroad company is willing to let this state of affairs go on and fight the cases where they inflict injuries, rather than go to the expense of having a watchman on this street to protect the public," implies that there were other instances of injuries to persons at the crossing where plaintiff received his injuries, on account of the failure of defendant to keep a watchman at this crossing; and, notwithstanding this, defendant was willing for such state of affairs to continue and to litigate the cases brought against it for injuries received at this crossing, rather than go to the expense of putting a watchman there to protect the public. There was no evidence adduced at the trial tending to show that anyone other than plaintiff had at any time received any injuries at this crossing through the failure of defendant to have a watchman there. This was a direct appeal to the jury to place the stamp of condemnation on such unfair and unjust dealing and conduct upon the part of defendant towards the public by rendering a verdict in favor of plaintiff in an amount sufficiently large to make it more to the interest of defendant to go to the expense of keeping a watchman at the crossing than that of litigating the suits brought against it for injuries received there. Appellant's bill of exceptions shows that it called the attention of the court below to the language of counsel complained of, and that it duly objected to such language, and the bill of exceptions is properly approved by the judge; and this, in our opinion, is sufficient to properly present the question raised by the objection for revision by this court. It will be assumed that the bill of exceptions states all that occurred, and it appears from the bill of exceptions, as we construe it, that the court did not sustain the objection, but permitted the objectionable argument. (St. Louis S.W. Ry. Co. v. Dickens, 56 S.W. Rep., 124.)

In the case of Chicago, R.I. T. Ry. Co. v. Langston,92 Tex. 709, the Supreme Court in speaking of an objectionable argument, uses this language: "Unless it can be said that this error did not prejudice the company, it was in law entitled to have the judgment reversed therefor. The objectionable argument was calculated to arouse and influence the jury in favor of plaintiff, and it must be held to have been so intended by counsel, that being the very purpose of the argument, and he having made it over the protest of the defendant. The action of the trial court in permitting it under the circumstances was in effect a permit to the jury to consider it."

In the case of St. Louis S.W. Ry. Co. v. Lowe, 12 Texas Ct. Rep., 938, which was a suit for injuries to plaintiff's wife, alleged to have resulted from the failure of the defendant to warm the waiting room at its depot, the court says: "It is made to appear by bill of exception that counsel for appellee in his closing argument used the following language: 'If you find such a verdict as you ought in this case it will be wired all over this State tonight, and tomorrow smoke will rise from a thousand chimneys of railway depots where there is none today. This is the only way railroad companies can be made to keep their depots warm.' The remarks excepted to were not, so far as the record discloses, provoked or justified by any argument of opposing counsel, and were highly calculated to inflame the minds and arouse prejudices of the jurors to appellant's injury." The language used in that case was an appeal to the jury to find such a verdict against the defendant as would compel it in the future to keep its waiting-rooms properly warmed, so as to protect the public from the cold and inclement weather.

In the case of Hanna v. Gulf, C. S. F. Ry. Co.,65 S.W. 493, which was a suit against the appellee, a railway company, for damages for operating its road on the street in front of plaintiff's premises, the whole court held that the argument of counsel for defendants to the effect that plaintiffs had not contributed anything to the railroad, and that they were not liberal, gave nothing for public good and were impediments to progress, was improper and its permission was reversible error. The majority of the court held that the argument of counsel to the effect that the indemnitors of the railroad company, who were impleaded in the suit for the protection of the railroad company, were public spirited citizens and contributed means to secure the railroad, was improper, such facts being immaterial to any issue in the case, and could not legitimately be considered in determining the rights of the parties, and that the action of the court below in permitting such argument constituted reversible error. For a full collation of the authorities bearing upon the question under consideration, reference is made to the two opinions in that case, supra.

We can not say that the appellant was not prejudiced by the argument complained of; in fact, we are inclined to the opinion that it was, in view of the sharp conflict in the evidence on the issue as to whether it was negligence on the part of the appellant to keep a watchman at the crossing of the street where the injuries were received by appellee.

We have considered all the other assignments of error presented and are of opinion that none of them are well taken. For the error indicated above, the judgment of the court below is reversed and the cause remanded.

DISSENTING OPINION.