Norfolk & W. Ry. Co v. Eley

• Decision Date: 13 June 1929
• Citation: Norfolk & W. Ry. Co v. Eley, 152 Va. 773, 148 S.E. 678 (1929)
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. ELEY.

148 S.E. 678

NORFOLK & W. RY. CO.

v.ELEY.

Supreme Court of Appeals of Virginia.

June 13, 1929.

Error to Circuit Court, Nansemond County.

Action by W. R. Eley against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

P. M. Rivinus, of Philadelphia, Pa., and L. P. Holland, and Jas. H. Corbitt, both of Suffolk, for plaintiff in error.

Holland & Lovelace, of Suffolk, and John N Sebrell, of Norfolk, for defendant in error.

CAMPBELL, J. This action was brought by the plaintiff, W. R. Eley, to recover damages for injuries which were alleged to have resulted from the negligence of the defendant company. There was a verdict for the plaintiff, and the court entered judgment thereon, to which judgment this writ of error was awarded.

There are eleven assignments of error dealing with the action of the court in giving and refusing instructions; in refusing to set aside the verdict of the jury because it was contrary to the law and the evidence; in refusing to set aside the verdict because of improper argument before the jury of counsel for the plaintiff; and in refusing to en ter judgment for the defendant; but, in the view we have of the case, which leads to a reversal, it becomes unnecessary to discuss the alleged errors of the court in giving and refusing instructions and in refusing to set aside the verdict of the jury as contrary to the evidence and entering judgment for the defendant.

The eleventh assignment of error is: "The court erred in permitting counsel for the plaintiff to make improper argument before the jury, as shown in Bill of Exceptions No. 1."

The material part of the bill of exceptions is as follows:

"During the closing argument for plaintiff, Mr. Sebrell, referring to the conflict of evidence between the plaintiff and the engineer and fireman as to the blowing of the whistle and the ringing of the bell, and replying to the argument of defendant's counsel that the plaintiff's testimony should be considered with regard to his interest in the case, said:

" 'My friend Corbitt talks about applying common sense and reason to this case. Let us do that:

" 'You know where a man himself is charged with fault that he always denies it. I don't know—it may be that this good gentleman who is engineer of that train and the good fireman of that train may have thought they can remember, to save their reputations, what crossings they blew for. Why, it has been since last November, and no man can remember what crossings they blew for. I have no doubt they blow for a crossing and a minute after, they would not remember it because they do it as a matter of form. So the engineer and conductor and fireman would imagine that all the way down they blew for the crossings, but they can't give you any special reason why they remember except Holland says that they are passing trains all day long. They had not expected anything to happen at that time.

" 'You, in all your experience, have never been in a court room in your life, nor has anybody else, and heard an engineer or a fireman admit that he failed to blow for a crossing. His family and his meat and bread are dependent on it. He works for the railroad company, and the minute he comes in and says that he fails in that duty and subjects the railroad to damages, "You are suspended, Mr. Engineer."

'"Mr. Corbitt: I except to the statement of counsel because there is no evidence in the record that that has happened.'

" 'The Court: There is no evidence of it, but it seems to me that the counsel is within his rights in his argument. There is no evidence as to that, but I think he can argue it.' To which ruling of the court the defendant did not except.

"'Mr. Sebrell: You take these things:

They happen according to our common experience. We hear testimony and tell whether a man is reasonable or whether he testifies according to our common experience. Here the engineer and the fireman perhaps thought that they did but they come into court and tell you that they were not at fault. I expected that. I am used to that.

" 'There is not a person that they have brought here, except somebody who is on the pay-roll and whose job, perhaps, depends upon it, that has been able to testify or who has been willing to testify that there was a sound of a bell or blowing of a whistle.'"

Questions similar to the one herein involved have frequently been made the basis of complaint in this court. See Wick-ham v. Turpin, 112 Va. 239, 70 S. E. 514; Washington & O. D. Ry. v. Ward, 119 Va. 339, 89 S. E. 140; Norfolk & W. Ry. Co. v. Allen, 122 Va. 617, 95 S. E. 406; Marshall's Case, 140 Va. 553, 125 S. E. 329; Spencer's Case, 143 Va. 531, 129 S. E. 351; Mansfield's Case, 146 Va. 279, 135 S. E. 700; Harold's Case, 147 Va. 617, 136 S. E. 658; Eagle, etc., Ins. Co. v. Heller, 149 Va. 82, 140 S. E. 314, 57 A. L. R. 490; Cunningham v. Town of Narrows, 150 Va. 609, 143 S. E. 740.

Those cases are relied upon by defendant in error to sustain the action of the trial court. We do not think the cases in point. In each of them some fact or circumstance is found which distinguishes it from the instant case. Without discussing them seriatim, it is sufficient to say that the record discloses that, when objection was made to the improper argument of counsel, the trial court, either by sustaining the objection or by instruction, endeavored to correct the error. No such situation confronts us in the case at bar.

There seems to be a growing disposition upon the part of counsel to take advantage of the court's indulgence and overstep the bounds of legitimate argument. Already too many sins have been committed in the name of "heat of argument." Trial courts should be the forum in which litigants should have their rights determined according to the rules of law instead of becoming arenas in which counsel engage in a battle of wits.

In Norfolk & W. Ry. Co. v. Allen, 122 Va. 617, 95 S. E. 410, Judge Burks said: "This court has more than once reprobated in no uncertain terms the practice of injecting into arguments of counsel statements calculated to inflame the minds of jurors, and tending to produce verdicts as a result of prejudice rather than a calm consideration of the evidence. Every litigant, natural or artificial, is entitled to a fair and impartial trial, and there should be excluded from the tribunal which is to try the case, whether judge or jury, everything that has no tendency to aid such tribunal in doing impartial justice between the litigants. There can be no differ ence of opinion on this subject. But, while assenting to this statement of the law, it is argued that the error of addressing improper remarks to the jury was harmless error, as there was ample evidence to sustain the verdict, and it does not appear that the jury found any punitive damages. The harm consisted in depriving the defendant of a fair and impartial tribunal to weigh and consider the evidence lawfully before it touching the actual damages sustained."

In the instant case it is manifest that the remarks of such eminent counsel were calculated to produce prejudicial results. There is no evidence in the record that the witnesses testifying for the defendant were influenced in any way by the hope of retaining their positions in case they committed perjury. The stricture heaped upon them was a direct impeachment of their integrity. Witnesses cannot be impeached in this manner. If it was desired to impeach these...