
    Illinois Central Railroad Company v. Jake Weinstein.
    [55 South. 48.]
    Tbiai. Improper argument. Instructions.
    
    Where in the argument of a close case upon the facts, the counsel for plaintiff in commenting on the facts of defendant’s failure to produce certain witnesses on the stand said, over defendant’s objection, that the fact that defendant had not brought certain witnesses raised the reasonable inference that defendant believed that if such witnesses were present they would testify in favor of plaintiff, and thereupon defendant asked an instruction that the jury could not presume that any person not present would testify against defendant and that defendant was no more bound to produce such witnesses than plaintiff. Held, that the refusal of this instruction and the refusal of the court to prevent the improper argument of counsel was reversible error.
    Appeal from the circuit court of Tallahatchie county.
    Hon. Sam C. Cook, Judge.
    Suit by Jake Weinstein against the Illinois Central Bailroad Company. From a judgment for plaintiff, defendant appeals.
    The facts are fully stated in the opinion of the court.
    
      Stone & Gary and Mayes & Longstreet, for appellant.
    ■ Instruction No. 11 asked by the'defendant and refused by the court, was warranted by statements of counsel for plaintiff excepted to by defendant by special bill of exceptions, and tbe rule of law announced in tbis instruction was tbe correct rule applicable to tbe objectionable remarks made by counsel and tbis instruction should have been granted.
    
      Tim E. Cooper, for appellee.
    Tbe 11th instruction, refused, was properly refused. Tbe evidence showed that tbe plaintiff was a- stranger to tbe persons on tbe train and tbe railroad conductor took tbe names of certain of these persons as witnesses to tbe occurrence. Certainly, if tbe railroad company bad tbe names of tbe witnesses and tbe plaintiff did not, it is not true that plaintiff was under tbe same obligation to produce tbe witnesses, or that tbe jury might, or might not, infer unfavorable testimony to the plaintiff, if they were not produced.
    Tbis was a question which should have been left to tbe jury. What is meant by tbe obligation to produce tbe witness, is simply tbis: that if a witness known to a party is not produced, tbe jury may, or may not, infer, according to circumstances, that tbe witness was not produced because bis testimony would be unfavorable to tbe party. And when tbe court tells tbe jury that no greater obligation rests on tbe defendant than on tbe plaintiff, it assumed to settle tbis question of fact and thus invades tbe province of tbe jury.
    It is submitted that on tbe whole case, tbe verdict is supported by tbe evidence; that there are no errors of law and that tbe judgment should be affirmed.
   McLain, C.

Tbis is an appeal from tbe circuit court of tbe First district of Tallahatchie county, from a judgment in favor of appellee. Weinstein, against appellant, tbe railroad company, for alleged personal injuries inflicted upon appellee by appellant, tbe railroad company.

Upon the trial of this canse, appellant presented the following special hill of exceptions: “Counsel for the plaintiff, in closing the argument in this cause, said to the jury that the conductor at the time of the accident took the names of the persons present, of Yaiden and others, and that it had failed to bring them to court when it could issue them free passes, and that the reason of this was because they thought they would testify unfavorably for the defendant, and would support the plaintiff. Counsel for the defendant objected to the statement of counsel, and the court made no ruling on the objection, and defendant excepted thereto. Defendant asked and obtained the following charge: ‘The court charges the jury, in this case, from the evidence before you, you should, not indulge any unfavorable presumption against the defendant on account of the absence of witness Yaiden, and have no right to indulge the presumption that defendant knew or believed he would testify something favorable to the plaintiff. The jury should only consider the statement of Yaiden as set out in the written statement, and should consider that just as if Yaiden was present and testifying to it before the jury’ — and passed it to counsel, who read it and said he did not mean Yaiden, but the other parties whose names were taken by the conductor, and that he would repeat that the fact that the railroad company had not brought these other perssons it was reasonable to infer was because it believed they would support the plaintiff, that that was what he meant to say, and that he would repeat the same. Thereupon counsel for the defendant asked the following charge: ‘ The court charges the jury that they have no right to.presume any person who is not present and testifying would give evidence unfavorable to the railroad company, and no greater obligation rests on the defendant to bring such pbrson than rests on the plaintiff. The jury must try this case on the evidence before them, and not on something that either they or counsel may imagine some absent person might testify — which the court refused to give, and the defendant excepted to the action of the court in both refusing the said charge and declining to stop counsel, or ruling out his remarks, as above set out, and now tenders his special exceptions.”

This instruction was warranted only by the state-' ments of counsel for plaintiff, and-the rule of law announced therein was the correct rule applicable to the' facts and to the objectionable remarks of counsel, and the instruction, under the facts as disclosed by this special bill of exceptions, should have been granted. The parties, whose absence was commented upon by counsel for plaintiff, were equally accessible to plaintiff and defendant, so far as the record discloses.

The refusal of the court, under the circumstances as detailed in this special bill of exceptions, to stop or admonish counsel for his remarks, followed immediately by the refusal of this instruction, all in the presence of the jury, was prejudicial to the rights of the defendant. This being, in our opinion, a close case on the facts, we are unwilling to affirm that no injury was done appellant by the comments of counsel and the ruling of the court as above set out.

We think the case should be reversed. We do not pass upon any other assignment of errors contained in the record.

Reversed and remanded.

Per Curiam.

The above opinion is adopted as the opinion of the court, and, for the reasons therein indicated by the Commissioner, the case is reversed and remanded. .  