St. Louis, Iron Mountain & Southern Railway Company v. Earle
| Decision Date | 01 April 1912 |
| Citation | 146 S.W. 520,103 Ark. 356 |
| Parties | ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. EARLE |
| Court | Arkansas Supreme Court |
Appeal from Conway Circuit Court, Hugh Basham, Judge; affirmed.
Judgment affirmed.
W. E Hemingway, Lovick P. Miles and Thomas B. Pryor, for appellant.
Mehaffy Reid & Mehaffy, for appellee.
This is an action instituted by appellee to recover the value of a horse which it is alleged was killed by reason of appellant's negligence. The act of negligence charged consisted in unnecessarily emitting steam and making a noise in the handling of its engine and train, thereby causing appellee's horse to become frightened, and the consequent injury to it, and in failing to use ordinary care to avoid the injury after discovering the fright and danger of the horse. The trial resulted in a verdict in favor of appellee. It is not claimed upon this appeal that the trial court committed any error in its rulings upon the instructions given or refused; nor is it claimed that the evidence adduced upon the trial was insufficient to warrant the verdict returned. The ground urged why the judgment should be reversed is that the attorney of appellee made improper remarks in his opening statement and closing argument to the jury, which were prejudicial.
The appellant is a railroad corporation, and it appears that, in selecting the members of the jury to try the case, appellant's attorney asked them in substance whether they had any prejudice against railroad corporations, and whether they could give to the appellant the same consideration they would to an individual in the trial of the case. In his opening statement to the jury, the attorney for the appellee said that "the questions that have been propounded to the jurors by counsel for the defendant were an insult to their intelligence."
Upon the trial of the case, the testimony tended to prove that the horse was pulling a wagon upon a public road, and was frightened by the repeated and unnecessary blowing of the whistle of a moving train on the afternoon of April 14, 1905. The public road ran parallel with and about sixty feet from the railroad track. At this place, and for a distance of about one mile in the direction from which the train approached, there were no obstructions between it and the team, which could have been readily seen for that distance by the employees on the engine, and until it had passed the team on the road. The appellant introduced as witnesses the conductor and engineer, who testified that they were on this train. The allegations in the complaint and the testimony on the part of the appellee were sufficiently certain and definite in establishing that the train causing the alleged injury was the one upon which this conductor and engineer were at the time of the injury. The engineer testified that he saw some teams travelling along the public road at this place where the injury was alleged to have occurred, but he denied that he saw any team that was or appeared to be frightened. The conductor testified that he saw no team at all at said place. Several witnesses on the part of appellee testified that, for some distance before the train reached a point opposite to where the team was in the road, the whistle of the engine was blown repeatedly and unnecessarily, and as the train was passing the team the engineer was looking out of his cab at the frightened horse, but continued making the unusual and unnecessary noise with the whistle. In his closing argument to the jury, appellee's attorney said,
It has been repeatedly held by this court that it constitutes reversible error for an attorney to make...
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