Missouri Pacific Railroad Company v. Foreman

• Decision Date: 12 July 1937
• Docket Number: 4-4718
• Citation: 107 S.W.2d 546,194 Ark. 490
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. FOREMAN
• Court: Arkansas Supreme Court

107 S.W.2d 546

194 Ark. 490

MISSOURI PACIFIC RAILROAD COMPANY v. FOREMAN

4-4718

Supreme Court of Arkansas

July 12, 1937

Appeal from Hot Spring Circuit Court; Henry B. Means, Judge reversed.

Judgment reversed and cause remanded for new trial.

R. E Wiley and Richard M. Ryan, for appellant.

Farmer Tackett and Tom W. Campbell, for appellee.

SMITH J. HUMPHREYS and MEHAFFY, JJ., dissent.

OPINION

SMITH, J.

Appellee 's intestate was killed at a crossing by one of appellant's passenger trains. The usual questions arising in such cases are present in this case, and are discussed in the briefs of opposing counsel. We find no error in the record except in the particulars hereinafter stated.

There was a sharp conflict in the testimony as to whether the whistle was blown or the bell rung as the train approached the crossing, and in discussing the character of the crossing Mr. Tackett, of counsel for appellee, in his argument before the jury, said: "I have been over that crossing many times, and lots of you men have, and it is a death trap, and there is not another one like it in the State." Upon objection being made to the argument the court said: "Mr. Tackett, you will have to confine your argument to the testimony." Further along in his argument counsel said: "If the jury returns a verdict in favor of the plaintiff there will not be a meal missed by an official of the Missouri Pacific Railroad Company." Upon objection being made to the argument counsel said: "I will withdraw any remarks I have made if they were not permissible." Counsel for defendant said: "I will ask the court to charge the jury to disregard it." Whereupon the court said: "I think that is a legal deduction in the first place; in the next place I will charge the jury they will consider the testimony." Exceptions were duly saved in both instances.

We think the argument in each instance was erroneous and prejudicial, and that the ruling of the court did not operate to remove the prejudice.

In the first instance the statement of counsel was an affirmative and very emphatic declaration of a fact upon one of the controverted issues in the case based upon his personal knowledge. It was in the nature of testimony, and the court did not direct the jury that it could not be so considered; on the contrary, the ruling was that counsel would have to confine his argument to the testimony. But the jury was not told that counsel's statement was not testimony, as should have been done.

The second statement of counsel was not withdrawn, nor was the jury told that it was improper. Counsel did propose to withdraw the remarks, but upon the condition only that they "were not permissible," but the court did not so hold; on the contrary, the argument was apparently approved by the court. Such is the effect of the ruling that "I think that is a legal deduction in the first place," and that holding was not qualified by saying "I will charge the jury they will consider the testimony." If, in fact this was a "legal deduction," as the court stated it to be, it was not improper for the jury to consider it. The fair--if not the necessary--"deduction" is that a judgment in the plaintiff's favor in the case on...