
    Nellie A. Sweeney, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence—improper statements of counsel to the jury—when a judgment will not be reversed because thereof.
    
    Where, on the trial of an action brought against a railroad company to recover damages for personal injuries sustained by the plaintiff, the attorney for the plaintiff, during the summing up, purposely and designedly resorted to unjustifiable and improper statements for the purpose of influencing the jury to give a larger verdict in behalf of his client, and the trial justice promptly and fully admonished him that his statements were improper, and fully and emphatically instructed the jury to disregard the same, the Appellate Division, on an appeal taken by the defendant from a judgment entered upon a verdict in favor of the plaintiff, considered that the jury, which rendered a verdict in favor of the plaintiff for $5,000, had obeyed the instructions of the court, and refused to reverse the judgment.
    Appeal by the defendant, The New York Central and Hudson River 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 Orleans on the 9th day of September, 1902, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 29th day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles A. Pooley, for the appellant.
    
      S. E. Filkins, for the respondent.
   Hiscock, J.:

Plaintiff, a young woman at the time of the trial of this action in 1902, of the age of twenty-two years, while a passenger upon one of defendant’s trains August 3, 1901, was injured in an accident caused by a collision, and this action was brought to recover for her damages alleged to have been sustained therefrom. It was claimed in her complaint and upon the trial that she was severely hurt, having received permanent injuries to her spine.

No contention is made upon this appeal that the evidence did not warrant the jury in finding defendant guilty of negligence and plaintiff free therefrom. The only questions addressed to our consideration by the learned counsel for the appellant are those relating to the size of the verdict, which was for the sum of $5,000, to certain exceptions taken to the reception of evidence, and to the conduct of the counsel for the plaintiff while summing up.

While the verdict was for a very substantial sum, we do not feel willing to say that it was excessive. The extent of plaintiff’s injuries was a sharply contested issue upon the trial. Several witnesses besides the plaintiff, and including two doctors, were sworn to sustain the contention that such injuries were very severe. Upon the other hand, evidence was given in behalf of the defendant to the effect that her claims in reference thereto were greatly exaggerated. The jury passed upon the issue thus presented, and we do not feel that the evidence warrants us in disturbing its conclusion.

Neither do we feel that the objections and exceptions taken to the reception of evidence present any such error as calls for a reversal of the judgment.

We have with considerable hesitancy reached the conclusion to affirm the judgment over the exceptions taken to statements made by plaintiff’s counsel in his summing up.

The record sufficiently discloses that such counsel in the course of his remarks, after having explained that in his complaint he claimed ten thousand dollars damages, proceeded to state, in substance, that plaintiff’s services were reasonably worth three dollars and fifty cents a week; also something, it not appearing exactly what, about what he had done in another law suit in Buffalo. Upon the objection of counsel for the defendant, the court corrected defendant’s counsel for making each of these statements. It ruled that there was no evidence before the jury in regard to the value of plaintiff’s services. It might also have been properly stated that there was no claim in the complaint for any such item of damages.

After these two statements had been made and objected to and passed upon by the court, the plaintiff’s counsel resumed his summing up, and in the course of it, again transgressing the record, stated to the jury, “ These companies, expect these accidents and make provision for them in their estimates.”

There was, of course, no evidence of any such thing, and the statement was absolutely unsupported and improper.

The counsel, upon the argument of this appeal, attempts to extenuate his conduct upon the plea that in the excitement and interest of summing up a case an attorney is liable occasionally and inadvertently to step outside of the evidence and make some statement which is not strictly warranted thereby. The record in this ease, however, fails to convince us that there was any such excuse for what was done upon the occasion in question. Upon the contrary, such record of all that took place, including the statements of counsel and the controversy between him and the court, fairly and plainly indicates that he purposely and designedly resorted to unjustifiable and improper statements for the purpose of influencing the jury to give a larger verdict in behalf of his client. His conduct in this respect was subject to criticism and objection. The learned trial justice, however, promptly and fully admonished him that his statements were improper, and fully and emphatically instructed the jury, in effect, to disregard the same. We think that, under such circumstances, it may be fairly assumed that the counsel did not accomplish his purpose of improperly influencing the jury, but that the latter obeyed the injunctions of the court and rendered its verdict in accordance with the views which it took of the competent testimony in the case.

We feel quite uncertain that another trial from which extraneous statements of counsel were eliminated would result in a verdict smaller or more favorable to the defendant than the one in question. For these reasons we have concluded to affirm the judgment.

All concurred.

Judgment and order affirmed, with costs.  