
    Philip Halpern, as Administrator, etc., of Rebecca Halpern, Deceased, Respondent, v. Nassau Electric Railroad Company, Appellant.
    . Summing up by counsel—what statements of unproved facts, calculated to excite d jury, require a new trial.
    
    In an action to recover damages for a death caused by the alleged negligence of a trolley street car company, statements made by the plaintiff's counsel, in his summing up of the case to the jury, of facts which have no support in the evidence and tend to inflame the minds of the jurors, when, objected to by the. defendant’s counsel, should be forbidden by the court; and where, after objec- ■ tion taken, the court directs the defendant’s counsel to postpone further objections until the summing up is closed, and the plaintiff’s counsel continues to state other unproved facts to the jury, a new trial will be granted.
    It is not every irrelevant or improper comment made by counsel to the jury which will require that a new trial be granted, but where such conduct is persistent and continuous and the fault is flagrant a new trial will be granted.
    Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of June, 1896, upon the verdict of a jury, and also from an order bearing date the 19th day of October, 1896, and entered in ' said clerk’s office, denying the defendant’s motion for a new trial ' made upon the minutes.
    
      James 0- Church, for the appellant.
    
      Q. WasKbourne Smithy for the respondent.
   Goodrich, P. J.:

In August, 1895, the plaintiff’s wife was a- passenger on one of the defendant’s trolley cars going towards Canarsie.. The track runs through Rockaway avenue, and she alighted at Belmont avenue, which extends to, but does not cross, Rockaway avenue. She passed around the rear end of the car, intending to cross the other track and go into Belmont avenue, the car having stopped at the . crossing. While crossing the track she was struck and killed by a ■ car coming from Canarsie, and the plaintiff recovered a verdict.

We do not consider any other questions in the case than those which arise upon the summing up of the plaintiff’s counsel, during which the following took place: “Mr. Church : Tour Honor, the counsel makes a statement I would like to correct. The Court: Tou 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, 1 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 13th 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 misstatements of fact, .but when the counsel deliberately goes outside — The Court: Don’t make any argument. Mr. Church: I just want to call your attention to this fact: That I think I am justified in excepting to statements that have no foundation in the evidence. Counsel stated to the jury that there was a war between our company 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 to say to the jury that there is absolutely no evidence to that effect, and that it was an improper statement for counsel to lay before the jury .in summing up. The Court: I will charge the jury that that has nothing 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 Brooklyn 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 evidence out, and that that ' was the cause of this accident. I ask your Honor to cliStrge the jury that when his : evidence on that point had been ruled out it was an improper statement 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: T ask your Honor .to charge that it was an improper statement to make to the jury. ■ The Court: I. am not called upon to charge on counsel’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 134 persons had been ■ killed by the trolley cars in Brooklyn, nor that there was a war .between the .defendant company and the Long Island Railroad Company in respect 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 evidence ■that there was no fender upon the car in question.

When the defendant’s counsel attempted to stop the reference of ■the plaintiff’s counsel to excluded evidence, or to matters not in evidence, he was directed by the court to wait until the conclusion of the plaintiff’s summing up. This was fair notice to plaintiff’s counsel that he was transgressing the rules of professional propriety ;■ but, instead of heeding the remonstrance, he persisted in making unjustifiable statements, not founded upon' evidence or founded upon excluded evidence.

At the close of the plaintiff’.s summing up the defendant’s counsel excepted to the remarks of the plaintiff’s counsel before referred to.

The Court of Appeals in the case of Koelges v. Guardian Life Ins. Co. (57 N. Y. 638) set aside the plaintiff’s verdict on the ground that the plaintiff’s counsel read extracts from a pamphlet ■ which was not in evidence, when the defendant’s counsel objected .to the reading. ■ .

In the case of Williams v. B. E. R. R. Co. (126 N. Y. 96) the Court of Appeals set aside a verdict for the plaintiff, in an action to recover damages to premises caused by the erection of defendant’s elevated railroad in front of them, because the plaintiff’s counsel, in summing up, after referring to the “ utter disregard of the rights of the private citizens by corporations,” was permitted to read, under objection and exception, an article from a newspaper, which purported to be an account of the killing of a boy by coming in contact with an electric light wire, negligently left swinging for months from a pole in a city street, and which commented on the neglect and incompetency of city officials. In the course of the opinion, Judge Andeews (at p. 103) said: “This privilege (summing up) is not beyond regulation by the court. It is subject to be controlled by the trial judge in the exercise of a sound discretion, to prevent undue prolixity, waste of time or unseemly criticism. The privilege of counsel, however, does not justify the introduction inliis summing up of matters wholly immaterial and irrelevant to the matter to be decided, and which the jury have no right to consider in arriving at their verdict. The jury are sworn to render their verdict upon the evidence. The law sedulously guards against the introduction of irrelevant or incompetent evidence, by which the rights of a party may be prejudiced. The purpose of these salutary rules might be defeated if jurors were allowed to consider facts not in evidence, and the privilege of counsel can never operate as a license to state to a jury facts not in evidence, or to present considerations which have no legitimate bearing upon the case and , which the jury would have no right to consider. Where counsel in summing up proceeds to dilate upon facts not in evidence, or to press upon the jury considerations which the jury would have no right to regard, it is, we conceive, the plain duty of the court, upon objection made, to interpose, and a refusal of the court to interpose, where otherwise the right of the party would be prejudiced, would be legal error. There are many cases sustaining this conclusion. Among them are Mitchum v. State of Georgia (11 Geo. 616); Tucker v. Henniker (41 N. H. 317); Rolfe v. Rumford (66 Me. 564). The reading by counsel in summing up to the jury of the newspaper article ‘ Only a Boy Peddler,’ was wholly irrelevant to the case. It could have been read for no purpose except to influetiee the jury against corporations, and to lead them, under the influence of a just anger excited by the incident narrated, to give liberal damages to the plaintiff in the case on trial. The refusal of the court to interfere, under the circumstances of this case, was legal error. The privilege of counsel and the largest liberality in construing it did not authorize such a totally irrelevant and prejudicial proceeding.”

It will be observed that in the case just cited, when the counsel for the plaintiff commenced reading the article, the defendant’s counsel interposed, objected to the reading and asked the court to prevent it; that the court overruled the objection and that the defendant’s counsel excepted. In the case at bar the defendant’s counsel made a similar attempt and was directed by the court to wait until the address to the jury was finished and then make the objection; and in-obedience to this direction, defendant’s counsel at the close of the address took his exception.

We do not think that the learned court was justified in permitting 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 plaintiff’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 134 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 persistent and continuous, and his fault flagrant.

We are not unmindful of the fact that by our decision the error of the plaintiff’s counsel will be visited upon his client, but that fact cannot be permitted to affect our judgment; 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 6oh-nected with the issues 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.

For the reasons stated, and without reference to any of the other questions involved in this appeal, the judgment must be reversed, with costs to the appellant to abide the event.

All concurred, except Bartlett, J., not. sitting.

Judgment and order reversed and new trial granted, costs to abide the event.  