Neumann v. St. Louis Transit Co.
84 S.W. 189
Mo. Ct. App.
1904
Check Treatment
GOODE, J.

(after stating the’-facts). — -The appellant’s attorney preserved an exception to the ruling of the trial court in cutting short his argument to the jury, and refusing to allow him time enough, he says, to argue the case at all. The time allotted for argument was fifteen minutes to each side, and according to the decision of the Supreme Court in Reagan v. Transit Co., 180 Mo. 117, 79 S. W. 435, we must rule that time was sufficient, as the testimony in the present-case is neither more extensive nor more contradictory than that in the Reagan case. Mrs. Newmann’s action was for injuries she received by a fall from a street car, alleged to have been due to the negligence of the conductor of the car. The testimony in her behalf tended to show she wished to alight from the car at Twentieth and Farrar streets in the city of St. Louis, and when the car stopped at the intersection of those streets, she arose from her seat near the front and started toward the rear, hut the conductor rang the signal to go ahead and the car started before she had time to get off; that she reached the rear platform and the car was then moving so rapidly she could not get hack to her seat, so she stood on the plaform holding to a handrail and expostulating with the conductor; that while she was in this position the car ran rapidly around a curve *226near Bremen avenue, and the consequent lurch threw her on the street and hurt her.

For the defense, the testimony tended to show that the appellant did not rise from her seat until the car was in motion and that the conductor attempted to prevent her from leaving the interior of the car and going on the platform; but she forced her way past him, went on the platform and stepped off; that he grabbed her to keep her from stepping off but his hold loosened and he failed to detain her; that the car was moving then at a rate which made it dangerous to leave it and the fall was due to her own rash act. Three witnesses testified for the appellant and six for the respondent. Considerable feeling was engendered during the progress of the trial between the judge and the appellant’s attorney and some heated remarks were made by the former in regard to the cross-examination of a witness, which induced the attorney to apologize to the judge, the jury and the witness. While said attorney was attempting to deliver his opening argument to the jury, he was interrupted by the court four times in seven and one-half minutes and once by the attorney for the respondent. During that interval the speaker managed to utter words which occupy fifty-three lines of the printed record, the judge spoke thirty-eight lines by way of reproof and elucidation of the issues and the respondent’s attorney three lines; that is, about one-half the time was consumed by the judge and the respondent’s attorney. The reason assigned for these interruptions was that in the opinion of the judge, appellant’s counsel persisted in arguing to the jury theories of recovery which had been excluded from consideration by the instructions. It may be allowed that said counsel transgressed to some extent in that respect ; but he appears to have done so from misunderstanding the instructions. Be that as it may, it was the duty of the trial court to keep the argument within the issues as defined by the instructions and not permit it *227to digress to irrelevant matters. Bnt so mucli of the speaker’s time was taken np by the observations of the judge in calling his attention to matters he might properly discuss and in descanting on the meaning of the instructions, that the case was submitted to the jury practically without appellant’s counsel having any opportunity to comment on the evidence. "We gather from the record that after he was stopped by the court telling him his time was'half up, the respondent’s counsel did not address the jury and hence there was no further argument. The speaker complained that he had had no opportunity to argue the case and was told it was his own fault because he had not confined himself to the testimony. So far as we can see the attorney had alluded to nothing in the course of his speech which was not in testimony, but had called attention to certain portions of the testimony which did not relate to the only ground of recovery submitted by the instructions, namely; that the appellant was thrown from the car by its running around a curve at a rapid speed. A verdict should never be insisted on by counsel on a hypothesis not warranted by the instructions of the court, and if this is done it is right for the court to interfere. But if the interference is accompanied by so much discussion as to consume a large part of the time allotted to the counsel for his argument, and that time is very short at best, it seems reasonable that the speaker should be granted further indulgence unless he was perverse in-disregarding the court’s admonitions. Appellant’s attorney behaved courteously toward the court and in so far as he was remiss, appears to have been so from not holding in mind, while he was attempting to address the jury, just what comments on the evidence might properly be made without his argument becoming inconsistent with the instructions. The testimony in the case fills fifty-six pages’ of printed record and could hardly be touched by a speaker during the few minutes the attorney was permitted to speak. We *228■understand the Reagan case to support the rule, adhered to by all courts, we believe, that reasonable time must be allowed counsel, all the circumstances considered, to argue a case to the jury. Our opinion is that in this instance the rule was not observed.

The judgment is reversed and the cause remanded.

All concur.