
    PERRY v. WESTERN NORTH CAROLINA RAILROAD CO.
    (Filed June 5, 1901.)
    1 RAILROADS — Lessor—Lessee—Negligence.
    The lessor of a railroad is liable for the negligence of the lessee in the operation of the road.
    2. RAILROADS — Negligence—Trespasser.
    It is not error to refuse to charge that a railroad owes no duty to a trespasser except not to injure him wantonly or wilfully.
    3. ARGUMENTS OF COUNSEL — New Trial — Improper Remarles of Counsel — Trial.
    The improper remarks of counsel in this case constitute ground for a new trial.
    ActioN by J. A. Perry, administrator of Pink Perry, against the Western North. Cair’odiinla Raiilroiadl, hearld by Judge W. B. Council and a jury, at January (Special) Term, 1901, of the Superior Court of Bueke County. From, a judgment for the plaintiff, the defendant appealed.
    
      Avery & Avery, and Avery & Ervin, for the plaintiff.
    
      Geo. F. Bason, for the defendant.
   Douglas, J.

This is a civil action brought by the administrator of Pink Perry, deceased, for damages for the alleged negligent killing of his intestate. The following are the issues as submitted and answered:

1. Was the injury resulting in the death of the plaintiff’s intestate caused by the negligence of the Southern Railway Company as alleged in the complaint? Ans. Yes.

2. Did intestate^ by his own negligence contribute to the injury resulting in his dearth ? Ans. Yes.

3. Notwithstanding sucb negligence on the part of the said intestate, could ¡tine Southern Railway Company by the exercise of due care and prudence have prevented the billing ? Ans. Yes.

4. Is the defendant answerable for tire negligence of the Southern Railway Oompany in causing 'the death of the plaintiff’s intestate? Ans. Yes.

5. What damage has -the plaintiff sustained ? Ans. $7,000. The following are the defemdant’s assignments of error:

1. The defendant assigns for error such parts of the charge of the Court as are embraced by exceptions 1, 2, 3 and 4.

2. To the refusal of the Court to give the instruction numbered 13, which was prayed for by defendant.

3. To the refusal of the Court to sustain defendant’s ohjeetion to the remarks of counsel as set out in its sixth exception.

4. To the finding of the Court of the fourth issue in the affirmative.

o. To the refusal of the Court to grant a'neiw trial.

The first assignment can not be sustained. His Honor’s charge was full, occupying 13 pages of the printed record, and, we think, fairly presented the case. The defendant’^ exceptions to> the charge are somewhat “broadside” in their nature, one of -them including nearly two pages of 'the printed charge in a single exception. We have, however, examined the charge, and think it should be sustained upon its merits. As the questions involved have been so recently and so elabor-ateiy discussed by this Court, and as a new trial must be granted upon the third exception, we do not think it necessary to further comment upon the charge.

The second assignment can not be sustained. We suppose it refers to Hi© sixth exception, although the prayer itself is not numbered in the records. This exception could not have been given, 'as it is against the uniform current of our decisions.

The fourth assignment is without merit, as the question involved has been directly decided in James v. Railroad, 121 N. C., 523. Why it should have been put in the form of an issue in the ease at bar does net clearly appear to ns. As a common carrier, chartered by the State, assumes certain obligations to the public of which it can not absolve itself by its orwn act alone, it is primarily liable for all injuries caused by the negligent management of its road. In any event, the burden rests upon it of showing such facts as will release it from its prima facie, 'and we might almost say, its inherent liability. No such evidence appearing, there was no- error in the direction of his Honor.

The matter seems to have been presented as a pure question of law. It is true the counsel agreed in the Court below that all evidence bearing upon this question, whether record, documentary or oral, that had been offered in the James case (121 N. C., 523, 530), should “be considered as introduced” in the present case. No such evidence appears in this record, and we do not feel called upon to review the James case. That a railroad company leasing its road is liable for the negligence of its lessee in the operation of 'the road, is well settled in this State. Aycock v. Railroad, 89 N. C., 321, 330; Logan v. Railroad, 116 N. C., 940; Norton v. Railroad, 122 N. C., 910, 937. The third assignment of error has given us considerable difficulty, but we are forced to the conclusion that it must be sustained. The following statement is taken from the record: “During the course of the argument by one of the plaintiff’s counsel, he took occasion to compliment R. E. Simpson, conductor of a material train, and to state tih'alb he was a man of good character; had been known to him all of Ms life; 'thait he had no intention to attack Mm and that h:e believed that Mr. Simpson intended to tell the facts correctly as far as they came under his observation. He said further, however, that he regretted thait he could not say so much for the witnesses Black and Headricks, and it w'as transparent to every one who heard the examination that they were net fair and impartial witnesses, hut were influenced hy the fact thait they were employees of defendant. He further stated that he h)ad once thought 'that a mam muid take employment from .this railroad company and yet feel free 'to tell the whole truth upon the witness stand, but that his observation within the last few years in the court-house had taught him thait men Who held their place ait 'the will of a railroad company were, as a rule, subjected to great temptations which most of them could not withstand. He then said: ‘I will give you an instance without mentioning any names. I Was trying a ease against 'the sarnie defendant when an engineer was placed upon the witness stand whom I had fcnolwn for 25 years, and whose character I 'would have sworn to> upon the stanid, was good. This man had been discharged for carelessness hy this company -and re-employed two or three months before the trial. He was introduced for the company, and on Ms cross-examination in chief so stated the facts bearing upon the question of negligence, in the case then on trial, as to acquit the defendant of all blamie. On the cross-examination, counsel who appeared with me handed Mm a printed statement purporlbing to have been theretofore made hy him giving a full account of the facts which he had just professed to' narrate, and which printed statement, signed by him, was. utterly contradictory of his evidence as jnst delivered, and that thereupon he hr'oke down and begged with tears in his eyes that the papier should not be shown to' Mm. Counsel further stated -that he didn’t then abuse that witness, for hie felt he had perjured himself to' pult bread in the months of his children. He then said that he wished the jury in passing upon the testimony of employees Black and Hendricks to recollect that their bread and meat depended upon the managers of the Southern Railway Company. During the course of this argument the defendant, through their Counsel, arose and objected to such argument being made. The Court overruled the objection, and one of the counsel for defendant, S. J. Er-vin, stated to his associate, G-. F. B'ason, the leading counsel in the case, in a tone audible ¡to the Court, ‘Why don’t you except V and in reply Mr. Bason said, ‘I do not have to except now.’ Defendant’® counsel upon the statement of this case upon appeal insisted that his language wias intended to convey the idea that he did except 1» the language, whereupon the Count allows such, exception.”

The exception does not appear tie have been taken in a very regular manner; but as. his Honor has allowed it, evidently for the purpose of giving the defendant the fullest opportunity of appeal, we will examine it in the spirit in which i't was allowed.

This Court has said in the case of McLamb v. Railroad, 122 N. C., 862, 872: “Much allowance must be made for the zeal of counsel in a hotly contested case, especially where the colloquy is mutual; and indeed much latitude is necessarily given in the argument of a case where there is conflicting evidence; but counsel should be careful not -to. abuse their high prerogative, and where the remarks are improper in themselves, or are not warranted by the evidence, and are calculated to mislead or prejudice the jury, it is the duty of the court to interfere.” The same remarks will apply to- the ease alt bar. If the witnesses had misbehaved in any way upon the stand, either in, words or manner, or showed any bias either of fear or favor, their 'testimony would be the proper subject of comment by counsel. In Cases where the direct- testimony of witnesses is diametrically opposite, some of the witnesses must be testifying improperly, either to that which they know is not true or to that of which they have no knowledge. In such circumstances it is natural -that the counsel should attribute such false testimony to ‘the opposing witnesses. Whether be exceeds bis privilege in doing so must necessarily be left largely to the discretion of the Judge trying the case, who, hearing the testimony and seeing the behavior of the witnesses can judge far better than any one else of the propriety of his comments. If that were all, we would hesitate to interfere; but counsel went far beyond any testimony in the case, and, over .the objection of the defendant, related facts within 'his personal knowledge, not of common information, and which were not in evidence. These facts were essentially damaging in their nature, and, corning from so high a source, were capable of producing the most dangerous prejudice. That the counsel intended no impropriety, which we cheerfully admit, does not alter the case. The fact remains that such Statements, coining from one of his high character and exalted position in his profession, became only tlie more dangerous when addressed to jurors whose confidence he justly possessed. Such statement were not in evidence, and were not properly admissible in the argument of counsel.

For the failure of his Honor to interfere at the request of opposing counsel, a new trial must be ordered.

New trial.

MoNtgombey, J.,

concurs in the conclusion reached in the opinion of the Court that a new trial must be had and for the reason assigned. Pie thinks, however, that his Honor should have given No. 13 of the defendant’s special prayers for instruction, which Was in the following language: “If the jury find from tire evidence that intestate went to defendant’s depot for the purpose of heating a ride on one of defendant’s trains, then intestate was >a trespasser from the moment he entered defendant’s premises and the defendant owed him no duty except not to injure him wantonly or wilfully or with such carelessness as amounts to a reckless disregard of conse-quemces.” And it. follows, therefore, if that view is- correct, that that part of bis Honor’s charge which laid down the law governing the defendant’s duty towiard the intestate and its liability for the injury inflicted on him as thalb which would be applicable to one who had a right to be at the depot — excepted to by the defendant in 1, 2, 8 and 4 of its exceptions— was erroneous. The witness Brittain testified that the intestate told him a short time before he wlas killed that he intended beating bis way on the train to Hickory from Mor-ganton.

Cook, J., concurs in above.  