Brown v. Central Pennsylvania Traction Co.

Opinion by

Mr. Justice Moschzisker,

At the trial of this case the plaintiff testified that while he was in the act of boarding a car of the defendant company it started and he whs thrown to the ground and injured. The defense was that the plaintiff had attempted to get on a moving car. The issue was submitted to the jury, and a verdict was rendered for the plaintiff; the defendant has appealed. There is but one assignment of error and that complains of the refusal of the trial judge to withdraw a juror and continue the case because of certain objectionable remarks made by counsel for the plaintiff during the course of his address to the jury.

The appellant contends that the plaintiff’s counsel said to the jury “that if the car was so crowded as to require the conductor to be inside, the company was negligent in not providing three men to manage it.” While the excerpts from the notes of testimony covered by the assignment of error indicate that something of this nature may have been said, counsel denies having made any such statement, and the assignment fails to show precisely what his remarks were; whatever they may have been there is nothing upon the record which shows that he made the assertion attributed to him by counsel for the appellant. Not having the language objected to before us, we cannot say that the court below committed error in its rulings in respect thereto. However, we are of opinion that the statement made by counsel for the plaintiff after the refusal to withdraw a juror, to the effect that “ a verdict against a corporation of this kind would be a blessing for this company as well as the community; it will preserve the safety of passengers in the community; it will act as a safeguard and a warning to the company,” was highly improper, and had an application for the withdrawal of a juror and continuance of the case based thereon been declined, it might well have been urged as reversible error; but this course was not pursued. On the contrary, counsel for the defendant merely stated to the court, “I object to that line of argument that there should be three men on a car; there is no custom shown or necessity for it.” The court replied, “we will take care of that ---- to the jury”; and counsel then said, “I simply note my objection.” From this we must take it that the defendant did not then desire to insist upon the withdrawal of a juror, else counsel would have directed the court’s attention particularly to the objectionable matter indicated by us, insisted upon his rights, and if refused, secured an exception. But instead of so doing, he simply noted an objection.

In cases of this character it is the jury’s duty to find the facts, and when the plaintiff is entitled to recover, to fix the amount of the damages; but the verdict should be given by way of compensation to the plaintiff and not punishment or warning to the defendant. To urge these latter considerations upon the attention of a jury merely serves to divert their minds from the proper line of thought and counsel indulge in such tactics at their peril: Saxton v. Pittsburgh Rys. Co., 219 Pa. 492; Carothers v. Pittsburgh Rys. Co., 229 Pa. 558; Connelly v. Pittsburgh Rys. Co., 230 Pa. 366; Freeman v. Wilkes-Barre & W. V. Traction Co., 36 Pa. Superior Ct. 166; Brown v. Sunbury & S. E. Ry. Co., 43 Pa. Superior Ct. 61. While in Brown v. Scranton, 231 Pa. 593, and Miller v. Phila. Rapid Transit Co., 231 Pa. 627, we recently overruled specifications of error which complained of alleged objectionable remarks of counsel, those cases are not to be taken as indicating any change of attitude by this court upon the general subject under discussion; as stated by the present Chief Justice in Saxton v. Pittsburgh Rys. Co., supra, such remarks are “intemperate appeals to the prejudices of the jury and invitations to find a verdict upon false grounds,” and they should be condemned accordingly. But, owing to the state of the present record, we must dismiss the assignment of error.

The judgment is affirmed.