108 Mo. App. 21 | Mo. Ct. App. | 1904
— Plaintiff is a minor seventeen years of age and sues by his nest friend. The evidence shows that on the second day of August, 1903, he undertook to board one of defendant’s cars travel-ling south on Nineteenth street at the corner of Nineteenth and Mallinckrodt streets, in the city of St. Louis, for the purpose of going to Forest Park Highlands. The car did not stop at the corner of Nineteenth and Mallinckrodt streets, the usual stopping place for passengers to get on and off, but stopped at Garden street, one-half block south of Mallinckrodt. Plaintiff followed the car to Garden street and got on the second step of the rear platform when, according to his evidence, corroborated by the evidence of several bystanders, the conductor of the car pushed plaintiff off with such force and violence as. to throw him prostrate in the street. The force of the fall was so great as to fracture his left arm in two places. After a temporary dressing of the injury by Dr. Schiermann, plaintiff was sent to the City Hospital for treatment. About the first day of September following the injury, he was treated by Dr. Wilbur H. Wilson, who stated that on account of malpractice the broken bones of the arm had lapped one over the other causing a curvature of the arm and that its use was greatly and permanently impaired. The suit is to recover for these injuries.
The jury found for plaintiff and assessed his damages at fifteen hundred dollars. On motion of defendant the court set aside the verdict and granted a new trial. The plaintiff appealed from this order. The motion for new trial, in addition to many other assignments, called the attention of the court to the argument
“The court having considered the motion of defendant for a new trial doth sustain the same because of improper conduct of plaintiff’s counsel in his argument to the jury. ’ ’
■ Counsel were restricted to ten minutes on a side in which to argue the case to the jury. Counsel for plaintiff used language in his closing argument which, it seems to us, was calculated to prejudice the jury and inflame their passions against the defendant. The following extract from his closing argument, we think is especially objectionable:
“Now counsel speaks of a lawyer getting into the hospital with a crowbar. Gentlemen, he has made that charge against me, and it has been well known that lawyers when they have no defense to their ease always try to prejudice the jury against the lawyer on the other side. If they have no case to talk about, they talk about the lawyer. Gentlemen, they make this charge against me, and I am glad to have the charge made against me for doing the services I have in this case by such a defendant. I will tell you, gentlemen, it takes the pot to call the kettle black. I tell you, I am glad to have them bring this up in this yray, because, gentlemen, if I never have anything worse to answer on the last day than the fact that Í helped this poor widow with eight children when she couldn’t get a doctor to attend to her son’s arm, when her son was being improperly treated in the hospital, I will tell you, gentlemen, if I never have anything worse to answer for than the fact that I have given this old woman money, and have helped out this family and this boy, and have, gentlemen, seen or tried to see that they got some little rights, if I have nothing worse than that to answer for, I
Counsel for plaintiff concedes that his argument was improper, but insists that as no objections were interposed at the time the argument was made, they can not be raised for the first time on a motion for new trial.
In Burdoin v. The Town of Trenton, 116 Mo. 1. c. 374, 22 S. W. 728, the court said:
“Our statute law declares that ‘no exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court.’ Revised Statutes 1889, sec. 2302.
“We think it should be held,in accord with the plain intent of that section, that where no objection (such as the trial judge can act upon), is made at the time to
In State v. Forsythe, 89 Mo. 667, 1 S. W. 834, it was held that objection to improper language of the prosecuting attorney in his closing argument comes too late if made for the first time in the motion for new trial. The same ruling was made by the Kansas City Court of Appeals in State v. Dyson, 39 Mo. App. 297. In all these cases the motion for new trial was overruled by the trial court, and we would have no hesitancy in making a like ruling in this case had the motion for new trial been overruled. The granting of the new trial presents quite a different question and very materially alters the aspect the case would have presented had the motion for new trial been overruled. It is well-settled law that a trial court may, in the exercise of a sound discretion, set aside the verdict of the jury on its own motion. Not only is this true but it is also the law that it is the duty of the trial court to set aside a verdict whenever, in its judgment, the- verdict has been obtained by unfair and illegal means, and appellate courts, for obvious reasons, will not interfere with the exercise of this discretion unless it very clearly appears that the»court acted arbitrarily or otherwise abused its powers. The judge presiding at the trial may keep the arguments of counsel in the proper channel. To do this when no objection is made by the opposing party is, in some circumstances, a very delicate matter, and interference of doubtful propriety. The circumstances may be such that the judge may deem it' the wiser course to await the verdict of the jury and then grant a new trial if, in his opinion, the verdict is for the wrong party or, if for the right party, it is excessive. Whether or not the jury was influenced by an improper argument, the trial judge is in a better position to form a correct idea than is the appellate court. The jury is immediately under his eye and hence