Neumann v. St. Louis Transit Co.

• Decision Date: 15 November 1904
• Citation: 109 Mo. App. 221,84 S.W. 189
• Parties: NEUMANN v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

84 S.W. 189

109 Mo. App. 221

NEUMANN v. ST. LOUIS TRANSIT CO.^*

St. Louis Court of Appeals. Missouri.

November 15, 1904.

TRIAL — TIME FOR ARGUMENT TO JURY.

1. Where interference by the court and opposing counsel with the argument of counsel to the jury is accompanied by so much discussion as to consume a large part of the time allotted him for argument, so that reasonable time is not left him, and, so far as he is remiss, it appears to be merely from not holding in mind just what comments on the evidence might be made in view of the instructions, further time should be granted.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by Elizabeth Neumann against the St. Louis Transit Company. Judgment for defendant. Plaintiff appeals. Reversed.

Ernest E. Wood, for appellant. Boyle, Priest & Lehmann, for respondent.

GOODE, J.

The following excerpt from the bill of exceptions shows the course of the argument of appellant's counsel to the jury:

"Now, gentlemen, in discussing the matter, if I say anything that is not borne out by the evidence, if I say anything that is not correct, you must disregard that —

"The Court: Well, you must not say anything, if you can help it, that is not borne out by the evidence.

"Mr. Wood: I am simply telling you, gentlemen, what I think about it. That is all. I am simply reasoning. Now, gentlemen, suppose we just admit everything that the witnesses for the company have said; it seems to me, as a lawyer and as a man, and as a common, ordinary, reasoning individual, that this lady is absolutely entitled to recover, because, gentlemen, the car proceeded north past her stopping place, and she was there on the platform; and the conductor swore on the witness stand that he knew she was in a position of danger, and yet, gentlemen, he did not stop the car — went a whole block. He said he knew that she was in danger, and he didn't stop the car —

"The Court: The court, in one of the instructions, stated that there could be no recovery in the case based upon the allegation that the conductor failed to stop the car at Twentieth and Farrar streets; and you are disregarding that now, and arguing to the jury, in disregard of the court's instruction, that she is entitled to recover because he did not stop the car there. The injury did not happen there; she was not hurt in consequence of his not stopping the car there; but she was in good health and remained on that car until it got up to the curve, and was injured there. That is the reason for the court's instruction.

"Mr. Wood: I didn't mean to put it that way, if I did, your honor.

"The Court: In other words, in cases of this kind, it is the proximate cause of the injury that must be considered; that is, the thing that caused the injury. Was that negligence? That is the question for the jury. She was not injured in consequence of the car not stopping at this place, because she was on the car and went back to the platform — had a conversation with the conductor for some few seconds before she was injured up at the corner where the curve was. That is the reason for that instruction, gentlemen.

"Mr. Wood: I didn't mean to argue to you, gentlemen, that because he didn't stop long enough — I didn't mean that. That wasn't what I meant. What I meant was that the lady was there on the platform, and that all the conductor had to do, if she was in danger, was to pull the bell cord, and the car would stop. Then he could have let her go back into her seat. That was what I meant. It was up grade there; the track was dry; and the conductor said that the lady was in a position of danger, and all he had to do was to pull that bell, and the car would have stopped, and then she could have taken her seat. She tells you she didn't go back into the car because the car was going so rapidly. So, gentlemen, I say, even admitting what their witnesses say, it seems to me that the conductor was guilty of negligence there — I cannot see it any other way — when he swore he knew she was in a position of danger, and yet allowed the car to go on around the curve in that position.

"Mr. Jourdan: Well, that is exactly the same matter that your honor directed counsel not to discuss — the failure to stop the car down at Twentieth and Farrar.

"Mr. Wood: No; that is not it at all. I say, before he got to the curve up there at Bremen avenue — before he got on the curve — he should have seen that the lady was back in her seat; should have given her a chance to get back in her seat. That is my argument.

"The Court: Well, your allegation is that she was injured in consequence of being thrown from the car while going rapidly around the curve, and that is all the jury have to consider in this case, so far as the allegation of negligence is concerned; and the court has instructed in regard to that. If you had asked an instruction as to whether or not the conductor was allowed to stop the car in the middle of the street between Twentieth and Bremen avenue, it would have been refused because such is not the law. Now, I wish you would confine yourself to the instructions; otherwise I will consider any innovation or departure from the proper rule upon subsequent motions that may be made in the case.

"Mr. Wood: Well, gentlemen, I have a right, in standing here before you, to tell you that I believe Mrs. Neumann told the truth before her God...