Opinion by
On the night of March 19, 1947, Mary Narciso stepped into a hole in a public street in Mauch Chunk Township, Carbon County, and received serious and painful injuries. She and her husband, Emedio Narciso, brought this suit against the township to recover compensation. At the trial they produced evidence which, if believed by the jury, established negligence. Defendant, on the other hand, sought to show that there was sufficient light for wife-plaintiff to have *551 seen the hole and avoided it had she exercised reasonable care. On these issues the case was submitted to the jury which returned a verdict for defendant. Following the denial of a motion for new trial and the entry of judgment on the verdict, plaintiffs appealed.
Two issues are raised by the appeal. The first concerns the refusal of the trial judge to affirm a point for charge. No exception was taken to that ruling and it is, therefore, not properly before us for review:
Gross v. Clapper,
The second point, however, raises a serious question as to the propriety of certain remarks by counsel for defendant in his closing address to the jury. In that speech counsel admittedly stated that the suit in reality was against the taxpayers of the township and not against the township itself. It is plaintiff’s contention that this remark was so improper and prejudicial that it was likely to appeal to the passions and prejudices of the jury that a new trial should be granted.
It is well established that any statements by counsel, not based on evidence, which tend to influence the jury in resolving the issues before them , solely by an appeal to passion and prejudice are improper and will not be countenanced. As we have stated on many occasions: "... a verdict obtained by incorrect statements or unfair argument or by an appeal to passion or prejudice stands on but little higher ground than one obtained by false testimony”:
Saxton v. Pittsburg Railways Co.,
This Court is, of course, well aware that occasionally, in the heat of trial, counsel may make a statement which is not justified by the record but which may or
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may not have had a prejudicial effect on the jury. For that reason the granting of a new trial rests largely in the discretion of the trial judge. If he feels that an admonition to the jury to disregard the remark is sufficient we are reluctant to reverse since the trial judge is in a better position to see and understand the atmosphere of the trial and the effect the statement had on the jury. See e.g.:
Clark v. Essex Wire Corp.,
Although the standards of our bar are high the cases involving improper remarks of counsel are numerous. From these cases it is quite clear that this Court will not tolerate any irrelevant remarks by counsel which are reasonably likely to have a direct and prejudicial effect on the award of damages. The most obvious examples of this rule are the cases where attempts were made to show that defendant is protected by liability insurance:
Curran v. Lorch,
That line of cases directly rules this case. The only purpose that counsel could have had in stating that the suit was in reality against the taxpayers was to appeal to the prejudice of the jurors against expenditures of the taxpayers’ money and the possible resultant increase in taxes. It was an improper attempt to influence the award of a verdict and was just as fundamentally prejudicial as was its opposite made in
Walsh v. Wilkes-Barre,
Nor did the trial judge do anything to eliminate the prejudice created by that statement. On the contrary, when objection was made to the remark the court stated: “We will disregard the objection. Proceed.” In the eyes of the jury that might well have lent authority to the statement by implying judicial sanction of it: Bullock v. Chester & Darby T. R. Co., supra; Walsh v. Wilkes-Barre, supra.
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Defendant argues that plaintiffs should have moved for the withdrawal of a juror when the statement was made and having failed to do that, he may not now be heard to complain. It is unquestionably true that remarks of counsel cannot form a basis for a new trial in the absence of timely objection:
Weiss v. London G. & A. Co., Ltd.,
The remark of counsel was designed solely to appeal to the prejudices of the jurors. As we stated in Mittleman v. Bartikowsky, supra, at p. 486: “The winning of a verdict should be a hollow reward to the advocate who has brought it to pass by appeals to a jury’s prejudices and not by the strength of the case presented. Such verdicts are, moreover, worthless, for the courts will not let them stand.”
Judgment reversed and a new trial ordered.