290 S.W. 825 | Tex. App. | 1927
A number of appellant's assignments of error relate to its requested charge for an instructed verdict, and to the alleged error on the part of the court in rendering judgment because the findings of the jury are not supported by the evidence. All of these assignments are overruled. We think the evidence was sufficient to authorize the court to submit the case to the jury and to sustain the jury's findings.
Appellant complains of the argument made by Joseph W. Hale of counsel for appellee in his opening argument to the jury, when he used the following language:
"No; they are not to blame for the lights, or that door to the furnace being open, or that acetylene torch proposition. Oh, no, no! `We ought not to have used an acetylene torch' and why not use an acetylene torch to take that tap off under conditions of that kind? They let the cat out of the bag when the witness said it was too expensive. Too expensive; that's the plea, and the only reason they suggest in this case for not using an acetylene torch on that day. How much do you suppose it would have cost, gentlemen of the jury, to have moved the acetylene torch, even though it did weigh 150 pounds, up there and safely remove those taps? Would it have cost the railroad company as much to move that torch up there and remove those taps as it has cost Brazelton to take a hammer and chisel and knock it off there in the dark, with those fluctuating lights, under conditions such as are described here? Your verdict in this case, gentlemen of the jury, will be the answer. If you turn him out, then the Cotton Belt was right when they said it would be cheaper and less expensive not to use the acetylene torch, and let him knock his eye out; they wouldn't give him the acetylene torch because it was too expensive, and that's the same reason they didn't give him a new hammer, and I tell you when the juries of McLennan county give the Cotton Belt to understand it is cheaper for them to furnish suitable and adequate tools and lights and hammers free of defects than it is to force their employees to work with that kind of equipment and knock out their eyes, then they will improve their system, and not until."
We sustain this assignment. The evidence in the case was very conflicting and closely drawn, and the statement of counsel, "And I tell you when the juries of McLennan county give the Cotton Belt to understand it is cheaper for them to furnish suitable and adequate tools and lights and hammers free of defects than it is to force their employees to work with that kind of equipment and *826
knock out their eyes, then they will improve their system and not until," is, we think, highly prejudicial and inflammatory, and amounts to an appeal to the jury to penalize appellant by rendering a judgment for appellee and thereby force it to improve its system. While the argument was not complained of at the time it was made, it is of that class and character of argument that should not be indulged in and that attorneys should refrain from using. It is not necessary for counsel to object to the argument of counsel at the time same is made when it is clearly erroneous and uncalled for and entirely without the record. It is always the duty of counsel in his argument of a case to the jury to stay within the record, and to refrain from the use of inflammatory remarks, and to leave the jury untrammeled to pass on the issues raised by the testimony and as presented by the court. Parker v. Miller (Tex.Com.App.)
The question of what is and what is not reversible argument has been the cause of many pages of opinions being written, and no useful purpose could be accomplished by our adding thereto. It would be difficult to lay down any hard and fast rule with reference thereto. Each case must be determined on its own merits. In Wichita F. R. Ft. W. Ry. Co. v. Emberlin,
Appellant further complains of the action of the trial court in refusing to permit appellee, Brazelton, to testify that the hammer he complained about to Mr. Hodges (his foreman) was the hammer that had a 3/8-inch hole in it. We sustain this assignment. The evidence with reference to the particular hammer that was being used by appellee at the time he received the injury was extremely conflicting. Appellee testified that he had complained on several different occasions to his foreman, Mr. Hodges, about the defects in his hammer; that his hammer was marked with a 3/8-inch hole he had placed in it. He further testified that the hammer offered in evidence was not his hammer. His helper, Mr. Tanner, testified positively that a certain hammer which he identified and which had been offered in evidence was appellee's hammer and that it was the one being used by appellee at the time he received the injury. Under the record it appears that when appellee was injured he was carried from the building by attendants and sent to the hospital, and that he left his hammer in the cab of the engine where he was working. It was a material issue to be determined, and one that was submitted to the jury, as to whether appellee had complained of the condition of the hammer that was offered in evidence, and as to whether the same was the one he was using when he was injured. The jury found that the hammer offered in evidence was in fact the hammer that was being used by appellee, and they further found that appellee had made complaint with reference to the condition of that identical hammer to his foreman. Appellant was entitled to have this testimony go to the jury.
The other matters complained of by appellant will not likely arise on another trial.
For the errors indicated, the judgment of the trial court is reversed and the cause remanded. *827