
    The Toledo, Columbus & Ohio River Rd. Co. et al. v. Miller.
    
      Damages — Excessive verdict — Passion and prejudice■ — Charge to jury — Sympathy — New trial or remittitur.
    
    (No. 16661
    Decided June 21, 1921.)
    Error to the Court of Appeals of Cuyahoga' county.
    Victor D. Miller sued the plaintiffs in error in the court of common pleas of Cuyahoga county to recover damages for personal injury.
    In his petition he avers that in July, 1916, about 7 o’clock in the evening, he was walking in a westerly direction across North Fourth street on'the northerly cross-walk of the junction or intersection with Wheeling avenue in the city of Cambridge, Guernsey county, and had reached a point on said cross-walk near the westerly rail of defendants’ track, which crossed said intersection at said place, when, without fault on his part, and by reason of the negligence of defendants, he was struck and run over by one of their trains, which they were operating then and there in a northwesterly direction. The petition proceeds at length to describe the situation and surroundings, and avers that at the time of the injury and for a long time prior thereto the crossing was extensively used by the traveling public at all hours, day and- night; that defendants operated trains on said track and over the crossing at frequent intervals; and that the crossing was not equipped with gates, automatic bell or other -signaling device, and was unattended by watchman or flagman, and that no means were provided for the purpose of giving warning of the approach and passing of their trains at said crossing. He avers that at the time of the accident the defendants carelessly ran a train over the crossing at a high and dangerous and excessive rate of speed, to-wit, at the rate of thirty miles an hour, and gave no warnings of its approach to the plaintiff or the-public, and neglected to slacken the speed of the train or have the same under control as the train approached and crossed the intersection; and that they carelessly neglected to provide crossing gates, automatic bell, or other signaling device or to maintain a watchman to give seasonable notice of the approach of trains at the crossing.
    He alleges-that before his injuries he was an able-bodied man, in good health, and was earning and capable of earning approximately $5,000 a year; that by reason of the negligence of the defendants he was struck and run over by the train and both of his legs so crushed and mangled that they had to be amputated.
    In their answer defendants admit their corporate capacity; that plaintiff came in collision with one of their trains; and they deny all other allegations of the petition.
    The jury returned a verdict in the trial court in favor of the plaintiff for $75,000. A motion for a new trial was filed by defendants, assigning a number of grounds, among them, that the verdict was manifestly excessive, appearing to have been rendered under the influence of passion and prejudice, and that the court erred in its charge to the jury. The trial court in its entry overruling the motion for a new trial included the following language: “The Court -finds that the verdict, though excessive, does not appear to have been given under the influence of passion or prejudice and the plaintiff having'remitted from the amount of the verdict all in excess of $45,000.00, said motion is overruled.” Judgment was thereupon rendered for the sum of $45,000, which was affirmed by the court of appeals. Error is now prosecuted to this court.
    ' In the course of the general charge the trial court used the following language: “The plaintiff is asking anything for sympathy here, and while some strong word pictures have been laid before you in regard to his suffering and loss he has sustained, and probably intended to arouse your sympathy, you must disregard that entirely and absolutely, because any verdict reached through passion or prejudice or sympathy would not be worth five cents to that man. The Court could not permit it to stand. * * * This is a fair, square business proposition. If this man was injured through the fault of these defendants, they should pay him to the last cent;.but if he was injured through his own fault, through his own contributory negligence, as I have instructed you, they should not pay him one cent. Now, don’t think that my views are frozen with ice water; they are not. I don’t think any of yours are. either. But we are not dealing with sentiments nor sympathy, gentlemen, nor anything of that kind. We feel sympathy. If I thought there was a man on this jury that did not sympathize with this young man, he would never sit on another jury in my room, because he would not be fit to live if he was' so devoid of feeling as all that, but the point is that that is not the basis for your verdict. We sympathize with the poor lost dog that gets a leg cut off'under a street car, but that isn’t it. You have to be fair; you are sworn to do your duty. We are officers of the court, and while we may sympathize, gentlemen, we cannot allow that sympathy to run away with us. * * * I do not want you to think, gentlemen, that I am assuming that they are asking for your sympathy ; they are not. They are asking a verdict as a matter of right, and if he is entitled to it as a matter of right under the evidence he should get the last cent he is entitled to, as far as you can estimate it. It is up to you, how much this man should receive if you find for him, if he has made out his case. Nobody can help you, you must do that yourselves. Each of us has had to perform a part in the labor here in this case; the plaintiff has his, the defendants theirs, and I am doing my little stunt now, and it is up to you to do yours. I am trying to be fair and square; I expect you to do the same.”
    On the trial the facts were earnestly contested. There were many witnesses in the case who testified as to the location, the relation of the railroad tracks to the street crossings, the progress of the plaintiff toward the crossing, his conduct or care, or iwant of care and watchfulness, and all the events that led up to the accident, including the speed of the train, the absence of gates or automatic bell, or other signaling device, the obstruction of view caused by the presence of a street car, etc., and it must be said that a reading of the record convinces one that a very doubtful case was presented to the court and jury.
    
      Messrs. Squire, Sanders & Dempsey and MrRobert T. Scott, for plaintiffs in error.
    
      Messrs. Payer, Winch, Minshall & Karch, for defendant in error.
   By the Court.

Counsel for plaintiffs in error earnestly insist that the verdict, amounting to $75,-000, was excessive and given under the influence of passion and prejudice; and furthermore that there was prejudicial error in the charge of the court, in that the charge itself was calculated to induce the jury to give way to prejudice, thereby enlarging the amount of the verdict. The plaintiff had suffered the loss of both of his legs, and the case was one in which human sympathy for the plaintiff was naturally unavoidable. Certainly the normal individual juror could not help but entertain feelings of sympathy for the injured plaintiff, but it is quite a different question where the judge himself uses language which is calculated to engender sympathy or to induce an enlarged verdict for that reason. It is one thing for the juror to possess the attribute of sympathy toward his fellowman, but it is quite another for the court, by act.or word, to use expressions exciting the sympathetic tendencies of the individual juror. The case was being submitted, the evidence was all before the jury, counsel on both • sides had made their arguments, and this was the last expression in the case by either court or counsel. If the sympathy of the jury is exhibited in the verdict to such extent as to show passion or prejudice, and excessive damages result therefrom, the law of Ohio makes it the imperative duty of the court to set aside the verdict. (Section 11576, General Code.)

This court would be stultifying itself were the charge of the trial court allowed to pass unchallenged, thus impliedly permitting the trial courts of this state to use language of similar purport in their charges to the jury. The charge contained its own condemnation, as a reading of it will at once disclose. Its genesis may have been produced by the remarks of counsel. However, we are not advised from this record whether that be true or not, but if it were true the language of the court was not calculated to curb the effects of such arguments.

The motion for a new trial should have been sustained because of error on the part of the court in its charge to the jury. In affirming this judgment the court of appeals erred. Therefore, the judgments of the lower courts are reversed and the cause remanded to the common pleas for a new trial.

Judgments reversed.

Marshall, C. J., Johnson, Hough, Robinson, Jones and Matthias, JJ., concur.  