68 N.J.L. 1 | N.J. | 1902
The opinion of the court was delivered by
The plaintiff was injured by a fall received by her while alighting from a trolley car of the defendant company. At the trial she offered herself as a witness in her own behalf, and having stated that her fall was caused by the sudden starting of the car while she was on the running-board, and that it was stopped again as soon as possible after she was thrown, and that the conductor then came to her and helped her up, was then asked what the conductor .■said to her, if anything. The question was formally objected •to, but was permitted, upon the ground that what the con- ■ ductor said was part of the res gestee. The answer was: “ ‘It is too bad/ he says; ‘are you hurt?’ I said to him, ‘I signaled you to let me get off and you answered me.’ He said, ‘I know I did, but I forgot you. It is entirely my fault.’ ”
The rule, with relation to the. admission of declarations upon this ground, is that where the declaration is concomitant with the main fact under consideration and is so connected with it as to illustrate its character, it may be proved as part of the res gestes; but where it is merely narrative of a past occurrence it cannot be received as proof of the character of that occurrence. Greenl. Uvid., § 108; Castner v. Sliker, 4 Vroom 95, 97. Tested by this rule, we think the question should have been excluded. If the words attributed to the conductor had been exclamatory and coincident with the happening of the accident, they would undoubtedly have been illustrative of its character, and proof of them would have been admissible. They were, however, not spoken until after the accident had occurred, and, although the time which had elapsed between the happening of the accident and the making of 'the declaration was very short, still the words were merely narrative of the conditions which had brought it about.
The admission of this testimony was error.
Another reason, advanced by the defence, for setting aside the verdict in this case, is that counsel for the plaintiff, in his address to the jury, far exceeded his privilege, by laying before them facts which had not been proved, and which they had no right to consider, and insisting that they should taire those facts into consideration in making up their verdict. In discussing the question of the amount of damages which the plaintiff was entitled to recover, counsel said: “In , considering that point, bear in mind that this, girl, if her physicians are correct, unfortunately is robbed of a great deal. She not only has not enjoyed life, but she never probably will enjoy life again. She has not been a mother. She never can be a mother.” At this point counsel for the defendant excepted to the statement, on the ground that there was no proof whatever in the case that the plaintiff could not become a mother. The trial judge declined to .rule upon the exception, and permitted counsel for the plaintiff to proceed, which he did, in the following language: “I was remarking, gentlemen of the jury, that this girl .was a single lady; that upon the theory that her physicians are correct, she never can be cured of this difficulty; she never can become a married woman and a mother, and therefore is deprived of one of those pleasures and rights which belong to vigorous, well-organized women, and especially a woman of her type and accomplishments. This is a loss to her which this jury ought to take into consideration.”
The proper administration of justice in civil as well as in criminal actions, requires that counsel shall be allowed the widest .scope in his discussion of the evidence in a cause, but where he travels outside of the evidence, bases arguments on facts which have not been proved, and appeals to the prejudice of the jury, he not only far exceeds his privilege, but by his conduct vitiates a verdict in his client’s favor, if exception is taken by his adversary to such statements. The language of Andrews, J., in the case of Williams v. Brooklyn Elevaled Railroad Co., 126 N. Y. 96, so clearly and admirably defines the privilege of counsel in his summing úp to the jury, and the limitations of that privilege, that I cannot forbear to quote it at length. He says: “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 proven one of the most effective aids 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 in his
The same doctrine is laid down in the later case of People v. Fielding, 158 N. Y. 542, in an exhaustive opinion; and a very full collection of the cases which support it will be found in 2 Encycl. Pl. & Pr. 727, tit. “Arguments of Counsel.”
The statement of counsel, being of a fact which was not in evidence, and which, if the jury believed it, was likely to influence them to the disadvantage of the defendant, in making up their verdict, having been formally objected to, and the trial court having refused to interpose, the verdict should be set aside.
Another statement made by counsel for the plaintiff in his argument, which was urged upon our consideration, was that certain physicians who had testified on behalf of the defendant company as to the character and effect of the plaintiff’s injuries, had examined her because the legislature had authorized the railroad company to send any number of physicians to invade the house of a plaintiff and lay their violent hands upon her sacred body and then come upon the witness-stand to denounce and betray her.
*" Before leaving the case we deem it advisable to state that, in our opinion, the verdict, which was for $9,000, is so exorbitant as to afford an additional ground for making the rule to show cause absolute. When the plaintiff was thrown from tbe defendant’s car she struck upon her hip, severely injuring it. The contention on her part is that this injury is permanent, and that she will always be an invalid from it. The jury evidently’took that view. A careful examination of the testimony, however, has satisfied us that the conclusion reached on this point is clearly against the weight of the evidence, and that the plaintiff will in time be restored practically to her normal condition.
The rule to show cause will be made absolute.