Page:The Green Bag (1889–1914), Volume 09.pdf/497

 458

NEW TRIAL ON ACCOUNT OF COMMENTS OF COUN SEL. — This subject, on which this magazine pub lished a number of papers several years ago, rarely arises in the East, although in the more fervid South and West new trials on account of intemperate re marks of counsel are quite common. The New York Court of Appeals, however, have recently granted a new trial on this ground, in Halpern v. Nassau Elec tric Railway Company. The action was for death of the plaintiff's intestate by negligently running over her with an electric street car. The following from the opinion show the proceedings on the trial and the conclusion of the court : "Mr. Church : ' Your Honor, the counsel makes a state ment 1 woukl like to correct.' "The Court : ' You had better wait until he gets through and then make the correction.' "Mr. Smith continued his summing up as follows : ' They killed that lady, Mrs. Halpern, making the one hundred and thirty-fourth victim of the trolley cars in Brooklyn. They kept it up until the people rose up in their might, until the press cried, " Halt! Enough." But they would not stop. First one and then another and then another ordinance were passed. I read one of them to you, passed on the ijth of March, 1895, saying to these railroad companies: "Stop killing our people; run your cars slower; bring them down to eight miles an hour." They passed another ordinance that the judge wouldn't allow me to put in, about fenders. Counsel gets crazy when I mention fender. " Don't, for heaven's sake, mention that word in my presence or I will drop dead. Don't say anything about fender; I will get crazy; I will get sick." He says he is sick. I don't know what it is, whether it is the fender or whether it is this great mass of evidence here brought against him. I think if I were in his place I would be in a hospital. It is enough to make a man sick on the other side.' "After Mr. Smith finished his summing up the following took place : "Mr. Church: ' If your Honor please, in obedience to your direction, I did not ask to correct counsel, when he was summing up, for misslatements of facts, but when the counsel deliberate goes outside ' — "The Court: ' Don't make any argument.' "Mr. Church : ' í just want to call your attention to this fact : That I think that I am justified in excepting to state ments that have no foundation in the evidence. Counsel stated to the jury that there was a war between our com pany and the Long Island Railroad; that we were both rushing our trains at the fastest rate possible.' "The Court: ' That has nothing to do with the case.' "Mr. Church : ' I except to the counsel making that statement. I ask your Honor tu say to the jury that there is absolutely no evidence to that effect, and that it was an improper statement for counsel to lav before the jury in summing up.' "The Court: ' I will charge the jury that that has noth ing to do with the case whatever, and they must disregard the statement if he made it. I did not hear it.' "Mr. Church : ' He went on to state, if your Honor pleases, this fact: That the people of lirooklvn had arisen and passed an ordinance with relation to a fender, requiring fenders to be placed upon the cars, and that our car was not equipped with a fender, although your Honor ruled the evi dence out; and that that was the cause of this accident. I ask your Honor to charge the jury that when his evidence

on that point had been ruled out it was an improper state ment to make to the jury.' "The Court: 'I charge the jury it has nothing to do with the case.' "Mr. Smith : ' I was stating, your Honor, that they had no fender on the front of the car." "The Court : ' You wandered from the case a little. I do not think, on the evidence, that the absence of the fender had anything to do with the accident, and I so charge the jury.' "Mr. Church : ' I ask your Honor to charge it was an improper statement to make to the jury.' "The Court : ' I am not called upon to charge on coun sel's conduct. I can charge on the statements.' "Mr. Church : ' I have an exception to his remarks on that point.' "There was no evidence in the case that one hundred and thirty-four persons had been killed by the trolley cars in Brooklyn, nor that there was a war between the defend ant company and the Long Island Railway Company in re spect to rushing trains at any rate of speed, nor was there any evidence that an ordinance had been passed requiring trolley cars to be equipped with fenders. There was evi dence that there was no fender upon the car in question. "When the defendant's counsel attempted to stop the reference of the plaintiffs counsel to exclude evidence, or to matters not in evidence, he was directed by the couit to wait until the conclusion of the plaintiffs summing up. This was fair notice to plaintiff's counsel that he was trans gressing the rules of propriety, but, instead of heeding the remonstrance, he persisted in making unjustifiable state ments, not founded upon evidence or founded upon ex cluded evidence. "At the close of the plaintiff's summing up, the defend ant's counsel excepted to the remarks of the plaintiffs counsel, before referred to."

The court cited Koelges v. Guardian Ins. Co., 57 N. Y. 638; Williams v. B. E. R. Co., 126 N. Y. 96; Utitchum v. State, 11 Ga. 616; Tucker v. Henniker, 41 N. H. 317; Rolfe v. Rumford, 66 Me. 564; and concluded : "We do not think that the learned court was justified in permitling the plaintiff's counsel to continue his remarks upon extraneous matters and excluded evidence. Indeed, it was his duty to have stopped the remarks of the plain tiff's counsel upon his own motion. It is impossible for us to believe otherwise than that the counsel introduced these subjects into his address for the purpose of inflaming the minds of the jury against the defendant as one of the trolley roads which he stated had killed one hundred and thirtyfour victims, and which had been racing its cars with the Long Island Railroad. "We by no means intend to say that every irrelevant or improper comment made by a counsel through inadvertence or excess of zeal would require or justify setting aside a verdict, but in this case the conduct of the counsel was per sistent and continuous, and its fault flagrant. "We are not unmindful of the fact that by our decision the error of the plaintiffs counsel will be visited upon his client, but that fact cannot be permitted to effect our judg ment; all the more that, possibly, this decision may have a salutary influence in restraining the introduction by counsel, in their summing up, of matters not connected wiih the is sues on trial, to the end that the rights of parties litigant may be protected and not abused, and that juries may be limited to the consideration of evidence affecting the issues submitted to them, and to that evidence alone."