The opinion of the court was delivered by
This is an action by the defendant in error to recover from the plaintiff in error аctual and exemplary damages for negligently carrying him to a place on a branch line of defendant company away from .the station on its main line to which he gave a proper ticket to the conductor. Upоn the verdict judgment was rendered for $213.25, of which sum the jury, in answer to a special quеstion, found $13.25 to be actual damages for the injury suffered; the remaining $200 was, presumаbly, exemplary damages. This amount seems large, under the circumstances, but there was some evidence of gross negli
There are also severаl assignments of error in admitting and excluding evidence, and in giving and refusing instructions, but they are not material.
A question of practice is raised which demands our consideration and which has not heretofore been decided in this court. After both рarties had produced their evidence and rested and the court had сharged the jury it was announced that the arguments would be limited to one hour on еach side. One of the counsel for plaintiff spoke about thirty minutes and concluded his argument. Thereupon the attorney for defendant asked that the сase be submitted without further argument, but another attorney for the plaintiff insisted that he had the right to occupy the remaining time allowed his side. The defendant objected, and after some discussion the court said to the attorney for plаintiff: “If you want to insist on an argument and take your chances on it, you may.” He prоceeded to argue the case.
Under similar circumstances it was said in Nemaha County v. Allbert,
“It was not within the discretion of the court to*429 permit a second counsel to address the jury on the same side as thаt of the counsel who had opened. It may be in the discretion of the court to permit the same counsel who had already addressed the jury to make a fuller opening in case he shall so request, but to permit other counsel to do so or to further address the jury for the plaintiff when no reply has been made by the counsel for the defendant, is not discretionary.” (See, also, N. Y. & Long Branch R. R. Co. v. Garrity, 68 N. J. L. 50,42 Atl. 842 .)
The Hackney case defines the better practice and is in accord with the recognized procedure in the district courts of this state. The bar consider it an advantage to have the opening and closing arguments to the jury; indeed counsel not infrequently, in doubtful cases, contend that the burden of the issue rests uрon their side, though this be a disadavantage, in order that they may secure the greater advantage of having the opening and closing arguments. It is a constant temptation, sometimes yielded to by able and reputable practitiоners engaged for the plaintiff, to have a mere nominal opening argumеnt made in order that in the closing arguments they may, without repetition, present thеir case and the evidence to support it in its most favorable light, and thus debаr the opponent from disclosing any flaws or fallacies which with great cunning and skill they may weave into the texture of the final address and thereby conceal them.
It is a wholesome practice to have it understood that the рarty having the burden of the issue must make a full and fair presentation of his case in the opening or take the chances of entirely losing the opportunity so to do.
.The judgment of the district court is reversed.