80 Vt. 392 | Vt. | 1907
Trespass for an assault and battery; plea, justification, replication, de injuria. The plaintiff was a mail agent on the St. Johnsbury and Lake Champlain Railroad and the defendant- was a car cleaner on that road. At the time of the alleged assault, while a car was standing on a side-track in St. Johnsbury, the defendant was cleaning the smoking-room of the car which also contained the mail-room and the baggage-room. The plaintiff’s evidence tended to show that while he was engaged in his work in the mail-room he went into the smokingl room and found fault with the defendant about the water-tank in the plaintiff’s room not being properly filled and the lamps not being properly cleaned; that the defendant ordered him to leave the room, pushed him out and shut the door upon him, pinching his fingers in the door; that mail matter had accumulated in that part of the car and that he passed through the room where the defendant was at work for the purpose of removing the mail matter, and that he was rightfully in that room when assaulted. The defendant’s evidence tended to show that there was no mail matter in that part of the car, that the plaintiff had no occasion to pass through that room and that he was wrongfully there. The defendant testified that the plaintiff immediately returned to the smoking-room, “stood in front of where the defendant was sweeping,” when he again pushed him out. The plaintiff conceded that if any force was
Tbe issue made by tbe parties in their evidence, under tbe pleadings, was wbetber tbe plaintiff was rightfully in tbe smoking-room while in tbe performance of bis duties, or wrongfully there, as tbe defendant claimed.
Tbe plaintiff’s counsel evidently undertook to try bis case upon the theory that the railroad, company was responsible for tbe defendant’s acts. In bis opening statement to tbe jury be said that be-should show that tbe plaintiff “bad got himself into disfavor with the railroad company prior to tbe alleged assault; that immediately after tbe assault tbe officials” -. At this point be was interrupted by an exception being taken by tbe defendant’s counsel and be did not finish tbe remark, nor did he retract it.
Tbe remark was well calculated to give tbe jury an impression that tbe company or its officials instigated tbe assault. It was immediately followed by the plaintiff’s attorney calling tbe defendant as a witness, and, under tbe defendant’s exception, asking bim wbetber, “prior to this fracas” be did not know that there was friction between the plaintiff and tbe railroad officials, to which* the defendant replied that be did know that fact. A question arose upon tbe competency of such evidence and tbe attorney informed the court, in tbe presence of tbe jury, that he should' offer to show, before the trial closed, that tbe defendant assaulted tbe plaintiff by direction of one of tbe railroad officials. In tbe same line he got before tbe jury tbe fact that it was tbe duty of the railroad company “to take care of tbe mail part of the car as to cleaning it” and that it. employed the defendant for that purpose.
Mr. Blodgett, who was an attorney for tbe railroad company in other matters, had been called as a witness for tbe plaintiff. Tbe plaintiff’s attorney, in his closing argument, took occasion to characterize bim as an attorney for the railroad company and made unfair comments on his testimony. In that argument be also said to tbe jury: “If you were going to send your boy out into tbe world to earn a living, do you want bim to be bounded by tbe St. Jobnsbury and Lake Champlain railroad company and its miserable tools?” The defendant excepted to tbe remark and tbe Court asked tbe attorney if be
It is true that, as a general rule, a full retraction by counsel of an improper remark to the jury is held to cure the mischief done, but that must depend upon the spirit and manner in which the retraction is made. In this case the attorney, under the cover of a formal withdrawal of the remark, expressed his belief that the railroad company was in some way responsible for the occurrence. It seems to have been his purpose throughout the trial, to impress upon the minds of the jurors the idea that the railroad company instigated the assault and was the real defendant. He first stated it in his opening remarks and then drew from the defendant the fact that there was friction between the railroad company and the plaintiff. This was followed by an announcement to the court that he should show that the assault was made by direction of the railroad officials. The remark in the closing argument was made as though he had shown that fact, when no such fact had been proved, nor had been offered in evidence, though he had been told by the court that he might make the offer without objection.
The fact that the plaintiff was not in favor with the Railroad officials would not, in law, have connected them or the Company with the assault.
The remarks made by the plaintiff’s counsel to the jury, and those made in their presence, were calculated to mislead them by giving them an impression that the railroad company was connected with the assault, if not legally liable for it. Their natural effect was to prejudice the jury against the defendant and place him at a disadvantage with them, and the case does not show that the court cautioned the jury not to be influenced by them. The case falls within the rule repeatedly laid down by this Court. Judge Veazey said in Rea v. Harrington, 58 Vt. at page 190, 2 Atl. 481, that the impropriety and wrong of counsel thus stating or assuming facts in argument which are outside of all evidence are perfectly manifest. If a deliberate act, its object can be only to have the jury
Judgment reversed and cause remanded.