Union Pac. R. Co. v. Field

• Decision Date: 08 April 1905
• Docket Number: 2,103.
• Citation: 137 F. 14
• Parties: UNION PAC. R. CO. v. FIELD.
• Court: U.S. Court of Appeals — Eighth Circuit

137 F. 14

UNION PAC. R. CO. v. FIELD.

No. 2,103.

United States Court of Appeals, Eighth Circuit.

April 8, 1905

Syllabus by the Court

It is the duty of the court and of its officers, the counsel of the parties, to prevent the jury from the consideration of extraneous issues, of incompetent evidence, and of erroneous views of the law, to guard it against the influence of passion and prejudice, and to assure to the litigants a fair and impartial trial.

It is the duty of the trial judge, without objection from opposing attorneys, to prevent counsel in his address to the jury from discussing extraneous issues, from introducing irrelevant facts, and from insinuating erroneous views of the law.

But opposing attorneys must except to the erroneous argument of the speaker, if the court fails to act, in order to preserve the rights of their client.

The admission of unsworn statements of irrelevant facts by counsel in his address to the jury is as fatal as the introduction of testimony to prove them.

The suggestion of erroneous views of the law by counsel in argument, unless extracted by the charge of the court, is equally fatal.

The presumption is that error produces prejudice. It is only when it appears so clearly as to be beyond doubt that the error challenged did not prejudice and could not have prejudiced the complaining party that the rule that error without prejudice is no ground for reversal is applicable.

While the plaintiff, James E. Field, was riding in a caboose attached to a freight train of the Union Pacific Railroad Company at about 3 o'clock in the morning on the 7th day of May, 1902, another train of that company ran into the caboose and injured him. He brought an action against the company for alleged negligence, which he averred resulted in his injury. One of the witnesses for the company was a man named Morgan. In his address to the jury the counsel for the plaintiff said: 'Mr. Morgan, who was upon the witness stand, or who was in the town of Hoxie, presumably, or at least there so that he could give his testimony, and conversed with the railroad attorney, and after conversing with the railroad attorney then and there, he was not-- the railroad attorney was of the opinion that he better not take his deposition then, and now the testimony is of value, when he comes here upon railroad passes with which they could bring all of Sheridan county here. ' Counsel for the railroad company excepted to this remark of the attorney for the plaintiff, and he continued: 'The testimony there of this witness is here. We will just say they can bring them any old way, but they pick out the witness to bring here, of Mr. Morgan's type. Why could not Mr. Morgan testify when the others testified by deposition? Why must there be some special reason or some special inducement to get him there before he will testify? Because there are a class of men who must be urged in some manner, gentlemen. ' There was no testimony in the case that Mr. Morgan or any other witness came to the trial upon a pass. The following colloquy occurred during the same address of counsel for the plaintiff, who said: 'Suppose we go to one question upon this matter of liability. I want to suppose that my friend Loomis here, who is defending this case for this company, and defending it ably. He is doing it, as far as his part of the matter is concerned, fairly, and very decently and creditably, and I want to ask him to tell this jury, if he will, when he comes to argue this case, how much he, starting with the health which he has and assuming that he has physical strength to go out and husk corn-- By Mr Loomis: I except to this illustration of counsel. I do not think it is a fair one to use to this jury. The Court: I think not. I think you will have to conform to the facts concerning the man who claims to have been injured. Mr Guthrie: I was going to put that to Mr. Loomis, if the court please-- Mr. Loomis' own estimate, if he cared to give it. Mr. Loomis: I still except. He is repeating what I am excepting to. Mr. Guthrie: I thought it was the comparison only. I beg your pardon, Mr. Loomis. (Continuing): I say to you on my own behalf, however large a sum of money the $20,000, the amount asked in this case, may be, that it would not compensate me-- Mr. Loomis: We still except to that remark. The Court: I think you should compare it with the man who under the testimony this man was shown to be. Mr. Guthrie: I see now the basis of the exception. I say to you then, gentlemen, put it in that way: that no verdict that you can render in this case within the limitation that is put upon your powers in this case can compensate that man for the prospect he has to go through life with, of sitting upon his front porch a useless adjunct to the farming operations which he continues or which he had conducted theretofore. ' There was a verdict and judgment for the plaintiff, which is challenged by the writ of error.

N. H. Loomis (R. W. Blair, H. A. Scandrett, and A. L. Williams, on the brief), for plaintiff in error.

W. F. Guthrie (L. C. Boyle, on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and PHILIPS and RINER, District Judges.

SANBORN Circuit Judge, after stating the case as above, .

Under our system of jurisprudence it is the province of the jury in actions at law to try and determine the rights of parties according to the law and the evidence. It is the duty of the court and of its officers, the counsel of the parties, to prevent the jury from the consideration of extraneous issues, of irrelevant evidence, and of erroneous views of the law, to guard it against the influence of passion and prejudice, and to assure to the litigants a fair and impartial trial. An omission by court or counsel to discharge this duty, or a persistent violation of it, is a fatal error, because it makes the trial unfair. The property of a defendant may not be lawfully transferred to a plaintiff without an impartial trial of the controversies between them. A trial is not fair and impartial in which a discussion of irrelevant issues, a statement of a persuasive but immaterial fact, or the assertion or insinuation of an erroneous view of the law or of the wrong measure of damages by counsel in his address to the jury, may have had an influence favorable to his client. The trial judge has the power, and in the first instance it is his duty, in the absence of objections by opposing attorneys, to stop and reprimand an attorney who undertakes to indulge in remarks of this nature, and, if possible, to immediately extract from the trial the vice of his obnoxious observations. And if, as is often the case, it is impossible to accomplish this, it is the duty of the court to at once discharge the jury, and to direct a new trial. This is primarily the duty of the judge because the conduct of the trial and the task of making it fair and impartial are chiefly intrusted to him, and because it is a delicate and irksome duty for a lawyer to interrupt and censure his opponent in the midst of his argument, a duty from the discharge of which the court should as far as possible relieve him. Nevertheless, this is a duty which an attorney must perform to protect the interests of his client, if the court fails to do so without his suggestion. Cudahy Packing Co. v. Skoumal, 60 C.C.A. 306, 313, 125 F. 470, 477. It is exceedingly difficult to withdraw from the minds of jurors, or from any mind, suggestions of immaterial facts, insinuations of misleading rules of action, or arguments which arouse passion or prejudice; and yet in cases in which the address of counsel conveys suggestions of this nature to the minds of the triers of the facts it is only when it is certain that these have been withdrawn that the trial is fair and impartial. It is therefore of the gravest importance that the conveyance of such suggestions to their minds should be prevented at the very threshold of the attempt, and that court and counsel should guard the jury with zealous care against all illegal, improper, or unfair arguments or suggestions. Waldron v. Waldron, 156 U.S. 361, 367, 383, 384, 15 Sup.Ct. 383, 39 L.Ed. 453; Graves v. U.S., 150 U.S. 118, 120, 14 Sup.Ct. 40, 37 L.Ed. 1021; Hall v. U.S., 150 U.S. 76, 14 Sup.Ct. 22, 37 L.Ed. 1003; Wilson v. U.S., 149 U.S. 60, 68, 13 Sup.Ct. 765, 37 L.Ed. 650; St. Louis & S.F. Ry. Co. v. Farr, 6 C.C.A. 211, 216, 217, 56 F. 994, 1000; St. Louis & S.F. Ry. Co. v. Bennett, 16 C.C.A. 300, 305, 69 F. 525, 529, 530; Cudahy Packing Co. v. Skoumal, 60 C.C.A. 306, 313, 125 F. 470, 477; Bullard v. Boston & M.R. Co., 64 N.H. 27, 5 A. 838, 840, 10 Am.St.Rep. 367; Perkins v. Burley, 64 N.H. 524, 15 A. 21; Magoon v. Boston & MR. Co. (Vt.) 31 A. 156, 163; State v. Hannett, 54 Vt. 83, 89; Brown v. Swineford, 44 Wis. 282, 294, 28 Am.Rep. 582; Mitchum v. State of Georgia, 11 Ga. 615.

The remark of counsel for the defendant in error in his address to the jury to the effect that one of the witnesses of the railroad company came to the trial upon passes, and that he was present before the jury when his deposition might have been taken, was objectionable, because there was no evidence that this witness traveled upon passes, and because, if that fact existed, it was not the proper subject of comment, since in a trial at law every litigant has a legal right to produce his witnesses in the presence of the jury, and there to present their testimony.

The argument of counsel upon the measure of damages was yet more objectionable. The attempt to compel opposing counsel to answer or to refuse to answer how much he would accept to sustain the alleged injury of the plaintiff, and thereby to insinuate a rule of law and a measure of damages which he knew to be erroneous, was a plain attempt to lead the...