
    William W. Kinne, Respondent, v. International Railway Company, Appellant.
    
      Improper statements of counsel to the jury — when they require that a new trial be granted.
    
    Upon the trial of an action brought to recover damages for personal injuries sustained by the plaintiff while a passenger on one of the cars of the defendant railway in consequence' of a collision, it appeared that much publicity had been given to the catastrophe in Niagara county where the collision occurred; that the motorman and conductor who operated one of the colliding cars had been indicted for criminal negligence in connection with the accident and that, because of the apprehension that an impartial trial could not be had in the county of Niagara, the trial of the indictment was transferred to Orleans county.
    The defendant conceded its liability and the only question litigated was, the amount of the damages which the plaintiff, who had been very severely injured, was entitled to receive. The plaintiff’s counsel stated in his summing up that the “ accident occurred through the criminal negligence of this defendant corporation,” and, upon the defendant’s counsel objecting to the remark, the court said, “there has been no criminal neglect,”and directed the plaintiff’s counsel to “keep within .the lines.” The plaintiff’s counsel further stated, during- such summing up, “when the defendant comes in here and asks that it should have a fair trial, when the defendant comes in here and criticises the plaintiff for bringing his action as quickly as he did, * * * it should be met by the proper exhibition of a fair, disinterested, proper and just verdict here in behalf of this plaintiff, such a verdict as will teach the defendant mid, all similar corporations or people who employ people, that their affairs, their railroads, their machinery or what not must be run with a view or regard to the safety of human life and limb."
    
    The counsel for the defendant excepted to the statement “ that'a verdict should be rendered on any such basis that would teach the defendant anything whatsoever,” and “asked the court to instruct the jury that that is riot an element of the case which they can consider.” The court declined to charge as requested and the defendant took an exception.
    The case was submitted to the jury and the plaintiff, who was twenty-eight years of age and in receipt of an annual salary of $600, obtained a verdict for $17,750.
    
      XLeld, that the judgment entered upon the verdict should be reversed, as the effect of the statement of the plaintiff’s counsel which received the sanction of the court (when he declined to charge as requested by the defendant) was to instruct the jury that they might award punitive damages, and to awaken their prejudices and arouse their passions.
    McLennan, P. J., dissented.
    
      Appeal by^ the defendant, the International Railway Company, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of Niagara on the 29th day of April, 1904, upon the verdict of a jury for $17,750* and also from an order entered in said clerk’s office-on the 9th d,av of May, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Morris Cohn, Jr., for the appellant.
    
      Greenleaf S. Van Gorder, Elijah W. Holt and Clark A. Craine, for the respondent.
   Spring, J.:

The plaintiff, while a passenger on one of the defendant’s cars, was very seriously injured in a collision at Burt, in the county of Niagara, on July 4, 1903: The liability of the defendant was conceded. upon the trial, and the only question litigated was the amount of damages to which the plaintiff was entitled.

He was twenty-eight years of ágé, a route agent in the rural free delivery service of the national government at a salary of $600 a year, and has obtained a verdict of $17,775. In the collision others-were injured, and much publicity was given to the catastrophe in -the county of Niagara. In view of the severity of the injuries inflicted upon the plaintiff, the wide circulation, given to the account of the unfortunate accident, and the fact that there was no defense. to the action, rendered it particularly important that nothing be done at the trial to inflame the jurors ; for at best a calm, dispassionate consideration of the extent of the plaintiff’s injuries would be difficult to obtain. .- -

The counsel for the plaintiff in his summing up stated that the “ accident occurred through the criminal negligence of this defendant corporation.” Upon objection of the defendant’s counsel the court very properly said : “ There has been no criminal neglect,” and directed the counsel to “ keep within the lines.” The motorman and conductor operating one of the colliding cars had been indicted for criminal negligence in connection with the accident and the trial of the indictment had been changed to Orleans county by reason of the apprehension that an impartial trial might not be had ill the county of Niagara where the collision occurred. The statement of the counsel was calculated insidiously but effectively to attract the attention of the jurors to the fact of the crime charged ‘against the men claimed to Tie directly responsible for the collision, and it would naturally tend to inflame their minds, and induce them to magnify the damages which the plaintiff had sustained.

Counsel did not heed the admonition of the court, but in his zeal proceeded to comment on matters not disclosed by the evidence, and the only purpose of which was to excite the jury unduly in favor of the plaintiff. ■ Passing over two or three of .these indiscretions, their climax is as follows: “ So I say that when the defendant comes in here and asks that it should have a fair trial, when the defendant comes in here and criticises the plaintiff for bringing his action as quickly as he did, that it should be met by the proper exhibition of a fair, disinterested, proper and just verdict here in behalf of this plaintiff, such a verdict as will teach the defendant and all si/mila/r corporations or people who employ people, that their ajfai/rs, their railroads, their machinery or what not must be run with a view or regard to the safety of human life and limb.”

The counsel for the defendant promptly excepted to the statement that a verdict should be rendered on any such basis that would teach the defendant anything whatsoever,” and asked the court to instruct the jury that that is not an element of the case, which they can consider,” which the court declined to do, and a.n exception to this ruling was taken. The import and vice of the statement of the plaintiff’s counsel are that the jury were not to be limited to pecuniary damages in awarding their verdict, but might allow damages as “ smart money,” to teach the defendant to operate its cars with greater regard for the safety of its passengers and the public.

This unfounded measure of damages received the sanction of the court in that the statements of counsel suggesting this rule passed unrebuked and uncorrected after attention had been pointedly directed to them by the counsel for. the defendant.

The Court of Appeals has condemned statements of this kind tending to awaken the prejudice or arouse the passion of the jury and divert attention from the facts which it is their province to determine. (Cosselmon v. Dunfee, 172 N. Y. 507; Cattano v. Met. St. Ry. Co., 173 id. 565.)

In commenting upon infractions of this. kind the court, in the latter case, say (at p. 571): “ A verdict should be found only bn the law and the evidence. Appeals to prejudice or passion, and the statement of facts neither proved nor presumed, have no place in a trial conducted according to the rules of the common law. The statement in question was- calculated to arouse prejudice and lead the jury away from the evidence. Tt was not warranted even if similar remarks had been made by the defendant’s counsel, which is suggested but not shown, by the record. It would have justified the trial court of the Appellate Division in exercising the great power of dealing with the facts, which is intrusted to them, but not to ns, by setting-aside the verdict and granting a new trial. The Court of Appeals, however, can' reverse only on an exception taken to a ruling of the court, and no exception- relating to the subject raises an error that we can review!”

In that case the judgment was affirmed because there was no attempt by the counsel for the defendant to check the improper remarks or to ask the court to' interpose. After the charge an exception was taken to the remarks made, but there was no ruling to which an exception could be taken.

This court has also been emphatic in denouncing inflammatory appeals of -this kind. (Benoit v. N. Y. C. & H. R. R. R. Co., 94 App. Div. 24, 29; Sweeney v. N. Y. C. & H. R. R. R. Co., 83 id. 565; Strickland v. N. Y. C. & H. R. R. R. Co., 88 id. 367.)

In the Benoit case the court (at p. 30) say : It is, however, too well settled to require argument or citation that where counsel, with apparent design and persistence, makes inflammatory and damaging statements of facts not found in the evidence and calculated to excite the passions of the jury, it is the duty of an appellate court upon review to set aside a verdict obtained under such- circumstances. Such reversal will not be withheld even though the trial judge has corrected the misstatements and directed the jury not to consider the same.”

The counsel for the defendant promptly asked for the interposi- ' tian of the court whenever opposing counsel overstepped the bounds of propriety in his remarks. This was the proper method to counteract the sting of these assertions or to secure. consideration of their damaging effect on appeal. (Dimon v. N. Y. C. & H. R. R. R. Co., 173 N. Y. 356.)

Beyond this exception was taken at once to the court’s refusal to instruct the jury that the counsel was in error in stating in effect that exemplary damages were permissible.

In the present case there was less excuse for infractions of this character and more reason for curtailing the summing up strictly to the facts than in any of the cases cited. The plaintiff was bound to receive from the jury at least the full measure of his damages, and it was incumbent upon the counsel to refrain from impassioned oratory, wholly imaginary in the facts stated or suggested and which were calculated to stretch the verdict beyond the actual damages sustained by the plaintiff. The verdict is an unusually large one and may have been liberally enlarged because of the uncalled-for remarks adverted to. The judgment and order should be reversed and a new trial granted.

All concurred, except McLennan, P. J., who dissented.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event upon questions of law only, the facts having been examined and no error found therein.  