St. Louis, Iron Mountain & Southern Railway Co. v. Devaney

• Decision Date: 13 February 1911
• Citation: 135 S.W. 802,98 Ark. 83
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. DEVANEY
• Court: Arkansas Supreme Court

135 S.W. 802

98 Ark. 83

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. DEVANEY

Supreme Court of Arkansas

February 13, 1911

Appeal from Nevada Circuit Court; Jacob M. Carter, Judge; affirmed.

Judgment affirmed.

W. E Hemingway, E. B. Kinsworthy, W. V. Tompkins, H. S. Powell James H. Stevenson, for appellant.

Hamby & Haynie, for appellee.

OPINION

FRAUENTHAL, J.

This was an action instituted by Mrs. Cleopatra Devaney, the plaintiff below, to recover damages for personal injuries which she sustained while a passenger upon defendant's local freight train. She alleged that the defendant ran some lumber cars with great and unusual force and violence against the caboose in which she was riding as a passenger, and knocked her out of the seat in which she was sitting on to the floor, and thereby greatly and seriously injured her; that her arm was broken at the wrist, and her back and spine wrenched, and from these injuries she has sustained a well-defined and permanent case of neurasthenia. Upon a trial of the cause the jury returned a verdict in favor of the plaintiff, and from the judgment entered thereon the defendant has appealed to this court.

It is not claimed by defendant that there was not sufficient evidence adduced upon the trial of the case to warrant the verdict of the jury in favor of the plaintiff; nor is it urged upon this appeal that the amount of the verdict returned by the jury is excessive. Upon this appeal the defendant urges two assignments of error as reasons why the judgment of the lower court should be reversed. One of these assignments of error relates to the argument of counsel for plaintiff, and the other to certain remarks of the trial judge made to the jury when they first made report of their inability to agree upon a verdict.

In his closing argument to the jury the attorney for the plaintiff made the following remarks: "Gentlemen of the jury, just think how this defendant treated this woman. She was a passenger. They left the caboose in which they knew she was riding on the main line, and then, without notice or warning to her, they at rapid speed hurled three cars heavily loaded with lumber against the caboose, knocking plaintiff off her seat, wounding her for life. Gentlemen, they treated her worse than you would have treated a dog." The defendant's attorney made objection to this argument, whereupon the plaintiff's attorney said to the jury: "All right, if they object, I withdraw it; but it is true all the same." Thereupon the court said to the jury: "Gentlemen of the jury, that kind of argument is not right, and the attorney should not have made it, and the jury will pay no attention to it."

It is urged by counsel for defendant that these remarks of plaintiff's attorney to the jury were improper and prejudicial to defendant's rights. We have repeatedly stated and called to the attention of the lower court that the due and proper administration of justice demands that the remarks of the attorneys before the jury should be kept within the bounds of legitimate argument; but as we have also said, there is no fixed and rigid test by which to determine what is and what is not legitimate argument. In the presentation of his client's case before the jury counsel has the right to fully argue relative to the testimony which has been adduced and also relative to every inference and effect which legitimately flows therefrom. He has no right to make statements of or to argue relative to matters of fact about which there has been no evidence introduced upon the trial of the case. But mere expressions of opinion relative to the effect of the testimony that has been adduced, although in the opinion of others not properly deducible therefrom, or mere words of embellishment or dramatic and rhetorical flights, which may be considered not in the best taste, do not make the argument of counsel wrongful or erroneous. The statement of the attorney in his argument in this case that the defendant "had treated the plaintiff worse than you would treat a dog" was only an expression of opinion at the most. The jury could not have understood thereby that counsel was making a statement relative to a fact not adduced in evidence on the trial. But, in addition to this, if it should be deemed that it was error for counsel to have made this character of argument, we think that any prejudicial effect that could possibly have arisen therefrom was dissipated by the court instructing the jury that such argument was not right, and that they should disregard it. Under such an admonition of the court we cannot see how any sensible men composing a jury could be influenced by such an argument in arriving at their verdict. The judgment of the court should not be set aside on account of these remarks of counsel. Reese v. State, 76 Ark. 39, 88 S.W. 841; Stewart v. State, 88 Ark. 602, 115 S.W. 374; St. Louis, I. M. & S. Ry. Co. v. Raines, 90 Ark. 398, 119 S.W. 665; Holt v. State, 91 Ark. 576, 121 S.W. 1072; Derrick v. State, 92 Ark....