Cawfield v. Asheville Street Ry. Co.
| Decision Date | 22 December 1892 |
| Citation | 16 S.E. 703,111 N.C. 597 |
| Parties | CAWFIELD v. ASHEVILLE ST. RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Buncombe county; JAMES H. MERRIMON Judge.
Action by Sarah Cawfield against the Asheville Street-Railway Company for personal injuries. From a judgment for plaintiff defendant appeals. Affirmed.
Where plaintiff's counsel in his argument calls two witnesses who had testified that plaintiff's character was bad "whorehouse pimps," it appearing that one of the witnesses had formerly been employed by plaintiff, who was proprietor of a barroom, oyster house, and dance hall, the reputation of which was bad, and the other had testified to a conversation at his own dinner table in which the paternity of a child of plaintiff's was discussed, such comments by counsel do not constitute so gross an abuse of privilege as to entitle defendant to a new trial, even though the trial judge, when appealed to, did not interfere to check counsel nor in his charge caution the jury with respect to these comments.
Thos. A. Jones, F. A. Soudley, and T. F. Davidson, for appellant.
H. B. Carter and Gudger & Martin, for appellee.
In Goodman v. Sapp, 102 N.C. 483, 9 S.E. Rep. 483, the court say that a number of cases cited, "and numerous other authorities, settle the general principle that the extent to which counsel may comment upon witnesses and parties must be left ordinarily to the sound discretion of the judge who tries the case, and this court will not review his discretion unless it is apparent that the impropriety of counsel was gross, and calculated to prejudice the jury." The plaintiff had introduced depositions of a dozen witnesses, examined at the place of her former residence in Kentucky, all of whom testified to her good character. Subsequently the depositions of four witnesses living in the same locality were introduced for the defendant. One of these did not know her general character. Another was offered to identify certain records of indictment against her and her husband when keeping a barroom in Kentucky. But the witness whose deposition was first offered testified to a long discussion between a bevy of women, had at his dinner table in his presence, and without objection from him, in which the question was whether a baby to which the plaintiff had recently given birth resembled one Joel Jackson. The other witness testified in substance that when he was about 22 years old the plaintiff's character was bad for virtue and for the house she kept, but yet that he worked with the husband, presumably at his own house, where she conducted the disreputable oyster saloon and barroom, with a ball room for rent to any who would pay the charges, of any color or condition, on the second floor. It was when counsel for the plaintiff applied the epithet "whore-house pimps" to these two witnesses that he was interrupted, and an appeal was made to the court to stop him. Instead of ordering counsel to desist, the judge told him to proceed, and did not allude to the remark in his charge to the jury, or make any comment upon it in their presence, though the counsel made no reflection on the witnesses after he was interrupted. The court was not asked to give any special instruction to the jury in response to the matter. We think that under all the circumstances the comments made upon these two witnesses (and they could have been applied by the jury to no others, as they, only, testified directly that plaintiff's character was bad) did not constitute so gross an abuse of privilege as to take the question of the propriety of checking counsel or cautioning the jury out of the discretion of the trial judge. One of them had been the employe of the husband, according to his own account, at a house known by him to have a bad reputation; the other had drawn a picture of the racy dinner-table talk in his own household, that invited, if it did not demand, criticism from a faithful attorney whose client's character was at stake, and was impeached only by witnesses who had exposed places so weak in their own harness. It was also within the sound discretion of the learned judge who presided to reprove counsel, and cause him to desist from further comment, if he considered the language used so coarse as to be disrespectful to the court. Nissen v. Cramer, 104 N.C. 579, 10 S.E. Rep. 676.
The defendant requested the court, in each of two aspects, to instruct the jury that the plaintiff would be guilty of contributory negligence if their findings should correspond with these particular phases of the evidence. The court complied with both of these requests, coupled in each instance with the qualification that if, notwithstanding the negligence of the plaintiff, the defendant by the exercise of ordinary care and watchfulness could have prevented the injury, they would find that it was not attributable to want of care on her part. Conceding that she was negligent if she failed to avail herself of such appliances as were provided to support her in alighting from the car, or if she attempted to get off without asking assistance, and when her hands were so full of bundles that it was impossible for her to catch hold of any part of the car in order to avoid falling, still the car was an open one, with seats extending across it, so that when a passenger started to get off the conductor could at a glance take in the situation, and it was negligence on his part if he ordered or permitted the car to be moved when the plaintiff was in the act of alighting from the step at the end of the seat occupied by her. Nance v. Railroad Co., 94 N.C. 619; Deans v. Railroad Co., 107 N.C. 686, 12 S.E. Rep. 77; Hinkle v. Railroad Co., 109 N.C. 472, 13 S.E. Rep. 884; Clark v. Railroad Co., 109 N.C. 430, 14 S.E. Rep. 43. We find that a very learned and careful text writer has adopted the view (citing authority to sustain it) that where a street car is standing at a regular stopping place it is negligence in the conductor to order the car to be moved when a passenger...
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