The suit was by an administratrix for the death of the husband, the result of personal injury, alleged to have been proximately caused by the negligence of defendant's agent while operating one of his engines. *Page 244
The complaint was originally in four counts, of which counts 3 and 4 were eliminated by charges of the court. Count 1 lays the negligence to the engineer in charge or control of "said locomotive engine" in negligently causing or allowing plaintiff's intestate "to be thrown or precipitated from said locomotive engine or the tender thereof," etc.; and the gravamen of count 2 was "that her (plaintiff's) said intestate was knocked, shaken, or jolted from said locomotive engine or the tender thereof, and the said injuries and death were caused by reason of the negligence of a person in the service or employment of the defendants, to wit, Sam Schaefer, who had charge or control of said locomotive engine, namely, the said engineer of said engine negligently caused or allowed said locomotive engine to be suddenly or violently knocked, shaken, or jolted on the occasion aforesaid."
Defendant pleaded the general issue and in short by consent, and there was judgment and verdict for plaintiff.
It has been announced by this court that improper argument, not warranted by or based on the evidence ought not be indulged in by counsel, and should be eliminated from the consideration of the jury on timely objection. It is further established that there may be appeals to race and class prejudices that have been held to be ineradicable. In the instant case the bill of exceptions recites:
"Thereupon counsel for the plaintiff, in making closing argument to the jury said: 'Any concern that will put a witness like that on the stand (referring to Dr. Goodwyn), will go to any length to defeat this woman's honest cause.'
"Counsel for the defendant thereupon objected to said statement, made by counsel for the plaintiff to the jury, upon the ground that said argument was illegal, irrelevant, and improper, and moved to exclude the same from the consideration of the jury, but the court thereupon, in open court and in the presence of the jury, overruled said objection and refused to exclude the same from the consideration of the jury, to which action of the court the defendant then and there in open court, in the presence of the jury, duly excepted.
"Thereupon Mr. Beddow turned to counsel for defendant and addressing him said: 'Mr. Scrivner, I don't claim that you personally, did anything wrong; I have known you a long time, and don't believe you would.' "
The argument objected to was more than a characterization of the reliability of the testimony of Dr. Goodwyn — it inferentially charges the defendant with going "any length to defeat" plaintiff's "honest cause." In the case of Green Sons v. Lineville Drug Co., 167 Ala. 372, 52 So. 433, the remark of counsel was to the effect that "these plaintiffs are * * * monumental liars." This was merely the statement of the opinion of counsel of the effect of plaintiffs' evidence as a whole. The instant remark of counsel to which the objection was made was to the effect that the introduction of Dr. Goodwyn as a witness by defendant authorized the inference of fact that defendant's whole defense and the testimony of his other witnesses, if need be, was unworthy of belief or fabricated. This observation of fact was not warranted by the other evidence for the respective parties and the conflict therein; that is to say, the remark of counsel was a statement of fact outside of the evidence, which could and should have been eradicated by the court, when duly invoked to such action.
There was no error in permitting the witness George Williams to be asked, "And what did Quattlebaum do?" and to answer, "He goes over to take water, and when he was going over, the engineer gave her a snatch, and he fell." Of this the bill of exceptions recites:
"Counsel for defendant thereupon moved to exclude that [he] 'gave her a snatch.'
"The Court: What was it he gave a violent snatch?
"Witness: The engine.
"Court: Overrule the objection. Defendant excepted.
"Continuing, the witness testified as follows: 'Quattlebaum fell. I got on this train at North Birmingham and was going to Jasper. The train stopped at Littleton to get water. Quattlebaum had to pull the spout down to take water, and he was up there for that at the time he fell. While he was doing that I say the engine gave a lurch. Quattlebaum fell. I went on that train to Jasper.' "
Assignments of error challenge the refusal of the trial court to give the general affirmative charges requested by defendant. Appellant bases his insistence for a reversal on assignments of error (1) "that plaintiff failed to show any causal connection between the alleged injury of plaintiff's intestate and his death," and (2) that "there was no causal connection shown between defendant's negligence and the injury."
In McMillan v. Aiken, 205 Ala. 35, 88 So. 135, the authorities were collected as to when the general affirmative charge should be given and when refused. It will be unnecessary to repeat the same. On each of the foregoing issues of fact the evidence warranted a submission of same to the jury, and there was no error in refusing the affirmative charges requested by defendant.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur. *Page 245