ATLANTIC COAST LINE RAILROAD COMPANY v. Kammerer, 14993.

• Decision Date: 07 January 1955
• Docket Number: No. 14993.,14993.
• Citation: 218 F.2d 149
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. Albert Gregor KAMMERER, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

218 F.2d 149 (1955)

ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. Albert Gregor KAMMERER, Appellee.

No. 14993.

United States Court of Appeals, Fifth Circuit.

January 7, 1955.

Chris B. Conyers, Brunswick, Ga., Allyn M. Wallace, Savannah, Ga., Gowen, Conyers, Fendig & Dickey, Brunswick, Ga., for appellant.

E. Way Highsmith, Brunswick, Ga., J. H. Highsmith, Brunswick, Ga., Highsmith & Highsmith, Brunswick, Ga., and Baxley, Ga., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.

HOLMES, Circuit Judge.

This is the second appearance of this case before us on appeal. The prior judgment was reversed because of the error of the court below in refusing to give certain instructions requested on behalf of the defendant. 5 Cir., 205 F.2d 525. We adhere to our ruling on the former appeal that this is not a case for punitive damages, and that the real question as to liability is one of comparative negligence. We also adhere to what was said in our former opinion about the impropriety of allowing an opening statement by counsel to be converted into a lengthy argument on the merits of the case, which tends to create such an atmosphere of bias or prejudice in the court room as to render it difficult for the jury to listen to the evidence with an open mind.

This action was instituted under the wrongful death statute of Georgia; it involves a grade crossing accident, occurring about 1:30 A. M. in Brunswick, Georgia, which resulted in the death of appellee's son, who drove his automobile into the side of a train that was occupying the crossing on a clear night with the moon, almost ready to set, shining through the large oak trees. In his opening statement to the jury, the plaintiff's attorney did not confine himself to a simple statement of the issues presented by the pleadings, or to the facts that he intended to prove by the witnesses, but he went further and made an inflammatory speech to the jury upon the merits of the case, discussing both the law and the facts in strong language and stating facts that would be clearly inadmissible in evidence. This purported opening statement began on page 132 and ended on page 169 of the printed record. The opening statement on behalf of the defendant covered almost exactly 3 pages.

It would be hard to overstate the prejudicial effect of this method of trying a lawsuit. There was no surviving eye witness to this terrible accident. The deceased was travelling alone, and there were no cars behind him. There were five members of the train crew: conductor, fireman, engineer, and two flagmen; but none of these saw the automobile before the accident, except the fireman testified that he got a glimpse of it just before the crash.

After the jurors were accepted, sworn, and impaneled, to sit as impartial triers of the facts, they were required to listen to a lenghty speech upon the alleged law and the facts of the case, the former not given them by the court and the latter not testified to by any witness. The plaintiff's attorney read from Georgia statutes as to the full value of a child's life that had been snuffed out by the inexcusable negligence of the defendant. The point he allegedly wished to bring to the jury's attention was that a penalty was imposed upon a person who caused the death of another by negligence. He said: "The penalty goes to the person who is authorized to sue for the negligent homicide. It is penal in that the measure of the recovery is the full value of the life of the deceased, irrespective of its real value to the person in whom the cause of action is vested."

Then followed an argument between counsel, interspersed with interrogatories by the court, as to whether the plaintiff was suing under the old law or the new one. The plaintiff's attorney said there was a question in his mind whether it was the same law or not. He did not want the court to rule on it now; it might not come up. Finally, the plaintiff's attorney said: "If your Honor please, I am trying to tell this jury that we are going to prove to them beyond any peradventure of doubt that this young man was killed by the most inexcusable negligence that they have ever experienced in the Court House. We are going to prove that." This statement was objected to as highly argumentative and prejudicial, and the objection was overruled. The court also refused to declare a mistrial, as requested by the defendant. The attorney for the plaintiff then continued as follows:

"As I was about to say to you, gentlemen, we expect to show to you by overwhelming evidence in this case that this young man was 24 years old, just a young man, and was living with his invalid father * * * that he was one of the most promising and finest young men in the City of Brunswick * * * that the life of that young man was snuffed out in the twinkling of an eye. * * * Now, Mr. Conyers has already started to objecting * * *, I have no prejudice or bias against the railroad. I have been counsel for the Southern Railroad myself."

The court sustained the objection to the above, and plaintiff's attorney said: "If he is not going to let me say anything, suppose I just read the plaintiff's petition." But he did not do that. He said: "All right, your Honor. I don't want anything in this record this time. I want to do anything and everything Mr. Conyers wants me to do. You will see that map later, Gentlemen. Anyway, gentlemen of the jury, this young man was driving his friend's automobile that morning to pick up his sweetheart, who worked in a restaurant in Arco, and who got off at 2 o'clock." Then he went on to tell that young Kammerer was very much in love with her and would go out every morning to take her home, going into unnecessary details, stating matters not admissible in evidence. Sometimes he appeared to be testifying as to facts within his own knowledge; and, when objection was made, sometimes the court would sustain the objection, but generally it would hold that if he was going to introduce evidence to prove the facts stated, he could tell it in his opening statement. Then would follow a torrent of words, which cover pages in the record, about this fine young man who was "absolutely sober on this occasion" and who "drove that car just as straight as he could go between the front of the engine and a box car that was hitched on to the front of the engine."

"In other words," he said, "the railroad had...