Louisville Nashville Railroad Company v. WadeLouisville Nashville Railroad Company v. Wade
- Defendant .below appeals from a judgment of $5,000 damages in favor of plaintiff who had brought an action under the Federal Employers’ Liability Act. A motion for a new trial was overruled.
The cause was -submitted to the jury on twо counts. Count One alleged that the injuries resulted from the negligence of the railroad in allowing pulpwood to remain in
Count Two was based on the allegation that the railroad failed to furnish and maintain a reasonably safe place in which plaintiff was to perform his work.
The defendant pleaded the general issuе and contributory negligence.
All of the argued assignments of error' are based upon certain grounds of the motion for a new trial which was overruled. All but two of them charge reversible error in the conduct of counsel in the trial of the case, both as to statements made and in questioning witnesses.
Appellant argues that the court erred in overruling its motions for a mistrial in connection with statements concerning railroad “bosses” in the courtroom.
After the jury had been impaneled, counsel for defendant asked that the witness Padgett, the plaintiff’s immediate supervisor, be excused from the rule as the representative of the railroad. The fоllowing transpired:
“MR. CUNNINGHAM: Judge, I understand there are two more railroad men sitting back here, Mr. Padgett’s two bosses. We are going to object to them being here in the courtroom if all the other witnesses are excluded. We ask that they be put under the rule.
“THE COURT: They will not testify if they remain in the courtroom.
“MR. CUNNINGHAM: Well, we don’t know whether we will * * *
“MR. BOUNDS: Yes, sir, Judge, we took depositions in the case and many of the witnesses who will testify, are employees. óf the railroad answerable to these рeople and I think it puts them in an unusual situation, one that they may not be able to feel free to testify in the same .manner in the presence of their bosses as they would testify with these people not here. And that’s аnother reason why we would like to have them excluded.
“THE COURT: Well, I am not going to exclude them if they are' not going to testify unless you have them subpoenaed.
“MR.' CUNNINGHAM: Well, we" would like to summons them. They bring their bosses down here to sit herе and put these witnesses on trial.
“MR. HAND:, If Your Honor please, I move for a mistrial for the very obvious reason the statement of counsel 'in regard to this is to prejudice the jury that the railroad * * *
“MR. CUNNINGHAM: They are. here, aren’t they.
“MR. HAND: Let me finish my statement. That we hаve brought these people down here for the purpose of intimidating him and his witnesses and I think that’s an unfair inference. And I think I am entitled to have a mistrial granted at this stage of the game because of the prejudiciаl statements.
“THE COURT: The court has not drawn any such inference and I am instructing the jury right now that there was no inference to be drawn from that statement which would be derogatory in any way to the parties or their attorneys.”
The сourt refused to exclude them unless they were subpoenaed and plaintiff’s counsel proceeded to subpoena them. A few moments later, the following occurred:
“MR. HAND: Judge, may I inquire of Mr. Cunningham if he intends to subpoena every person who intends to come in and sit.
*456 “MR. CUNNINGHAM: If the whole railroad comes down here we are going to put the whole railroad under subpoena. All these men are this man’s bosses and all the bosses of the оther men. And all these bosses who come in here and sit in here we are going to ask the court to put them under subpoena.
“MR. HAND: Again I move for a mistrial on the statement of counsel intending to imply that this is an effort to try to intimidаte the witnesses.”
This motion was also overruled. The court stated that there “was no inference to be drawn from that whatsoever.” The trial court recognized the right of the plaintiff to subpoena witnesses and cоrrectly overruled the motion for a mistrial.
Much must be left, in the matter of an attorney’s argument and statements, to the enlightened judgment of the trial court, with presumptions in favor of its rulings. To justify a reversal, we must conclude that substantial prejudice has resulted. In the light of the record as a whole, we cannot say that substantial prejudice to appellant resulted. St. Clair County v. Martin,
In closing argument, counsel for plaintiff stated that counsel for defendant was “bugged” and indignant because plaintiff did not want the railroad “bosses” in the courtroom. He further stated:
“ * * * All I know is we didn’t want .them in here. We haven’t accused anybody of anything. But I can say this, that it is just common sense if you are working for someone and you think that you have a right to come into a court of law and make a complaint against them for something you think they did wrong and when you know your bosses don’t approve it, and don’t agree with you, and don’t want you to, you have a right to come into a court of law and sit here and testify without all of the time looking at the gentlemen, the men who mean promotion to you, the men who mean whether you keep your j ob оr not, the man who thoroughly disapproves of what you are doing.”
Counsel for defendant objected and the trial court stated to the jury that “There is no evidence whatsoever as to these gentlemen controlling his employment, or promotions.” This is similar to the case of L. & N. R. Co. v. Cunningham Hardware Co.,
Applying the rule of St. Clair County v. Martin,
Appellant argues that reversible error was committed because counsel continually tried to show that all the walkways in the yard were littered with obstructions such as logs and stumps, when the evidence showed that plaintiff was hurt in the walkway between tracks 16 and 17. The trial court made it plain that the testimony should be limited to the area of the yard including the walkway between tracks 16 and 17, both when the objections were made and during the orаl charge. There was no question but that the plaintiff tripped and fell over a pulpwood log 18 to 20 inches in diameter and about 5 feet long between the two tracks.
Defendant’s witness Padgett testified on cross-exаmination that he was responsible for keeping the area cleaned up; that he found the piece of pulpwood between the tracks that caused the plaintiff’s injuries; that he was responsible for kеeping the area cleaned up but he knew at the time of the accident that pulpwood was in the walk
There' was no error in permitting this witness to testify as to his duties in the entire area, or to the fact that the walkways were not kept clean. We cannot аgree with appellant that the rule of Birmingham Baptist Hospital v. Blackwell,
Appellant argues that counsel for plaintiff improperly raised the question of punitive damages in his argument to the jury, when he said: “What is Andrew Wade (the plaintiff) entitled to? Should it be an amount that the railroad would gladly pay him to get rid of this thing? Should it be an amount that would say to the railroad, clean up those walkways and keep them clean from now on?” Defendant objected and the court stated that “we are not dealing with punitive damages. * * * damages by way of punishment.” The court then instructed the jury that all they were concerned with was the amount of damages due the plaintiff if he was entitled to recover; and the court refused to allow plaintiff’s counsel to argue the effect a verdict for plaintiff would have on the railroad. Later in its oral charge, the court again instructed the jury as to what it should consider in assessing damages.
Herе, the trial court did all that it was requested to do. We have held that a court which does all it is asked to do in sustaining objection to argument will not be-placed in error for failing to do more, unless the argument is so grossly imprоper and highly prejudicial that its sinister influence-cannot be destroyed by the action of the-trial court. Ledbetter-Johnson Co. v. Hawkins,
Appellant argues that counsel for plaintiff committed reversible error when he said in argument:
“* * * You know you can’t award attorney’s fees. You can’t award anything in this case for the time he was off for being in court here this two days, but this figure rеlating to pain and discomfort is left entirely up to your discretion. So I ask you, gentlemen, when you arrive at what is fair for that figure for pain and discomfort, you consider these other things that you know as members of this: society—that—things that you know are true. * * * ”
Appellant objected because it was an appeal for the jury to consider attorney’s fees in arriving at their verdict. The court said:
“THE COURT: Gentlemen, the court is going to instruct you right now thаt that is not an element of damage to be considered. And the court asks you to disregard that. What you may know is one thing but you are confined to the rules of evidence which excludes all together any consideration for any attorney’s fee which may be due and owing, any attorney.”
We think this prompt action and instruction of the court was sufficient to eradicate the error of the improper argument, and-did not cause thе argument to be so prejudicial as to amount to reversible error or" to be sufficient to warrant granting the motion for a new trial. Birmingham Electric Co. v. McQueen,
We think we have already shown that there was evidence to support the verdict and that the ground for the motion for a new trial that the verdict was contrary to the evidence was, and is, without merit.
Affirmed.