Illinois Cent. R. Co. v. Jolly

• Decision Date: 12 January 1905
• Parties: ILLINOIS CENT. R. CO. v. JOLLY.
• Court: Kentucky Court of Appeals

84 S.W. 330

119 Ky. 452

ILLINOIS CENT. R. CO. v. JOLLY.

Court of Appeals of Kentucky.

January 12, 1905

Appeal from Circuit Court, Ohio County.

"To be officially reported."

Action by Elizabeth Jolly against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

H. P Taylor, J. M. Dickinson, and Pirtle & Trabue, for appellant.

Glenn &amp Ringo, E. E. Kelley, and John B. Wilson, for appellee.

NUNN J.

This is the second appeal of this case. The opinion in the first appeal is published in 78 S.W. 476, 25 Ky. Law Rep. 1735. The case was then reversed for an erroneous instruction and for the failure to give an instruction for contributory neglect. Another trial was had in the lower court, and appellee obtained a verdict for $1,400, from which appellant appeals and assigns many reasons for a reversal.

The facts with reference to the extent of appellee's injuries and the manner and circumstances under which she received same, are stated in the former opinion, and we deem it unnecessary to reiterate same. The instructions given by the court on the last trial were in conformity with the former opinion. We deem it unnecessary to here consider any of the many reasons advanced by appellant for a reversal, all of them being without merit, except as to the amount of the verdict, and the conduct of appellee's counsel during the trial, and especially in his closing argument to the jury. It appears from the bill of exceptions that during the taking of testimony appellant's counsel made objection to a certain question and answer, when counsel for appellee arose with the remark, "It is the purpose of the plaintiff to follow this defendant to the Court of Appeals again." In the closing argument appellee's counsel used the following language: "That it had been some four or five years since this suit was brought; that the action had been once reversed in the Court of Appeals on a technicality, and that the railroad company was furnished with skilled lawyers and stenographers for the purpose of catching at every little thing, not larger than that (demonstrating upon his finger's end), for the purpose of again taking the case to the Court of Appeals and reversing the judgment." Counsel further stated to the jury as a fact in his closing argument as follows: "When railroad accidents occur railroad employés are furnished with statements already prepared, and that such employés are required to answer each of the statements 'Yes' in order to hold their job, and, if they answer 'No,' they walk a plank." And again, counsel for appellee used the following language: "That this action had been in the courts some four or five years, and that the railroad company was furnished with lawyers and stenographers for the purpose of catching at every little thing to take the case to the Court of Appeals again, in order to defeat the claim by reversing it, it having heretofore been reversed in the Court of Appeals on a technicality." It appears from the bill of exceptions that appellant's counsel objected to the foregoing remarks made by appellee's counsel, and asked the court to exclude the same from the jury, which the court refused to do, and appellant excepted.

Every case in court should be tried upon the law as given by the court and the facts adduced by the evidence. Every litigant is entitled to this character of trial. The courts should be careful to prevent improper conduct and language of counsel for either side for the purpose of unduly influencing the minds or inflaming the passions and prejudices of the jury trying the case. Counsel have the right, of course, to argue the evidence, and give their...