
    Patrick Williams, Ex’r, Resp’t, v. The Brooklyn Elevated Railroad Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 20, 1891.)
    
    1. Railroads—Elevated—Damages.
    It cannot be left for the jury to say whether an elevated railroad in a public street is, or is not, one which the legislature or the municipality may authorize as against an abutting owner, upon the theory that it is a question of fact and not of law, depending upon the extent of the interference in a particular case with the public right of passage or with the enjoyment by the abutting owners of their premises.
    2. Same.
    The jury may award damages for loss sustained through the inability of adjoining owners to rent houses, from time to time, while the preparatory construction was going on and after the completion of the road, where such loss could be traced to the operations of the defendants.
    3. Same—Trial—Summing up.
    The reading by counsel in summing up to the jury of a newspaper article, wholly irrelevant to the case, and read for the purpos.e of influencing the jury against corporations, and to lead them under the influence of a just anger, excited by the incident narrated, to give liberal damages, is unjustifiable, and the refusal of the court to interfere under the circumstances is legal error.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff entered oh verdict.
    
      William K Cohen, for app’lt; A. B. Boardman, for resp’t
    
      
       Reversing 32 N. Y. State Rep., 702.
    
   Andrews, J.

The Story case, and those which have followed it, have settled the doctrine that the placing of an railroad structure in a city street is inconsistent with its character as an open public street, and, in the absence of the consent of the abutting owners to the erection, violates their lights as such, notwithstanding the title to the soil of the way is in the municipality, and although the railroad company in erecting the structure acted under both legislative and municipal authority. In view of these decisions, the contention of the counsel for the defendant that he was entitled to go to the jury upon the fact whether the structure of the defendant was an interference 'with the right of the plaintiff as an abutting owner, depending upon the question whether it did or did not obstruct the street, cannot be sustained. There may be little and possibly no damage occasioned by the erection, or the existence of the road maybe a positive advantage to his property, depending on the particular circumstances.

Where the property owner sues for damages, the jury is to ascertain and award them, and they are to be governed by the evidence in determining the amount and whether substantial or nominal damages only shall be awarded. But it cannot be left for the jury to say whether the structure is or is not one which the legislature or the municipality may authorize as against an abutting owner, upozz the theory that it is a question of fact and not of law, depending upon the extent of the interference in a particular case with the public right of passage or with the enjoy - ment by the abutting owners of their premises. This disposes of one class of exceptions taken on the trial.

The oz’iginal charter of the defendant was granted in 1874, but the work of constructing the road was not commenced until 1879, and was not completed until 1885, and an exception was taken to the refusal of the court to charge that no damages weze recoverable for any depreciation of rental value of the plaintiff’s houses, resulting fz’om the contemplated building, or rumors of the contemplated building, of the defendant’s road.

There was no claim to recover for any damages except for the six years pz-ior to the commencement of the action, viz.: from November 20, 1880, to November 25,1886. The jury were expressly limited by the court to this time, and under this ruling it was ■quite immaterial whether the rumors that the road was to be built, existing prior to the actual commencement of the construction, did or did not affect the rental value of the houses completed before 1879, between the time of their completion and the time when the construction was commenced, and tlie court was justified in declining to charge upon this abstract question. The foundations for the columns of the road were laid in front of plaintiff’s premises in 1879,.and the court properly submitted it to the jury to find whether the obstruction of the street during the progress of the work, by the piers and the deposit of material used in the construction, diminished the rental value of the houses of the plaintiff during the period of construction, proof having been given which tended to support the plaintiff’s contention upon this point. There was no error in permitting the jury to award damages for loss sustained through the inability of the plaintiff to rent the houses fi’om time to time, while the work was going on and ■after the completion of the road, where such loss could be traced to the operations of the defendant.

The proof to sustain this claim was not and from the nature of the case could not be very definite or satisfactory, but there was evidence on the subject and the matter could not be taken from the jury.

Tlie exceptions taken by the defendant on the trial were very numerous. There were forty requests to charge made in its behalf. The charge covered the material questions in the case and furnished no ground for any valid exception. The requests to charge were mainly denied. They either related to matters upon which the court had already charged, or embodied abstract or immaterial propositions, or related to questions of evidence and the credibility of witnesses, the denial of which was not legal error.

We perceive no valid ground for reversing the judgment on the merits, and we should affirm it except for the ruling of the court made during the summing up to the jury.

The counsel for the plaintiff in his address to the jury, after referring to “ the utter disregard of the rights of the private citizen by corporations,” proceeded to read from a newspaper, “ The New York Tribune,” an article headed “ Only a Boy Peddler,” purporting to be an account of the death of a boy, “ a little fellow fifteen years old, a Roumanian,' a stranger in this great city (New York) selling collar buttons and pocket combs from a modest tray, to help support his mother and eight brothers and sisters,” caused by his touching an electric wire which, the article stated, had been left swinging for months from a pole near which the boy bad taken his stand. This was made by the writer the text for comment on the neglect of the city officials in failing to take effective measures to have electric wires placed under ground, and the article concluded with the statement: “It is shameful that where such perils are in question there should be procrastination, shiftlessness and incompetency which would not be tolerated in a private business.” When the counsel for the plaintiff commenced reading the article, the defendant’s counsel interposed and objected to the reading and asked the court to prevent it. The court overruled the objection and the defendant’s counsel excepted. The plaintiff’s counsel then resumed the reading and was reminded by the court that the reading was under exception, but the counsel proceeded and read the remainder of the article.

It is the privilege of counsel in addressing a jury to comment upon every pertinent matter of fact bearing upon the questions which the jury have to decide. This privilege it is most important to preserve and it ought not to be narrowed by any close construction, but should be interpreted in the largest sense. The right of counsel to address the jury upon the facts is of public as well as private consequence, for its exercise has always proved one of the most effective agencies in the ascertainment of truth by juries in courts of justice, and this concerns the very highest interest of the state. The jury system would fail much more frequently than it now does, if freedom of advocacy should be unduly hampered and counsel should be prevented from exercising, within the four corners of the evidence, the widest latitude by way of comment, denunciation, or appeal in advocating his cause. This privilege 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 into his 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 m,ay 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 weigh 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 inflame 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. The counsel also during the summing up read a passage from the opinion of this court in the Lahr case, 104 N. Y., 291; 4 N. Y. State Rep., 340, after objection taken by the defendant’s counsel had been overruled by the court. It is not important to consider the exception to this ruling, as the appellant is entitled to a reversal for the reason already stated. It may be observed, liowever, that it is the function of the judge to instruct the jury upon the law, and where counsel undertake to read the law to the jury the judge may properly interpose to prevent it. But if the judge sees fit to permit this to be done and the law is correctly laid down in the decision or book used by counsel, it would not, we think, constitute legal error or be ground of exception by the other party, although such a practice is not to be encouraged. If, however, the reading from a decision was to bring before the jury the facts of the case decided, or the amount of the verdict, or the comments of the judge on the facts, to influence the jury in deciding upon the facts in the case on trial, or in fixing the amount of damages, then clearly the reading ought not to be permitted.

We think the judgment in this case should be reversed, upon the exception taken to the reading of the newspaper article.

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

Ail concur.  