In disposing of this motion for rehearing, we deem it proper to notice the case of Stuart v. Haven, 17 Nebraska, 211, cited for the first time in the dissenting opinion filed a few days after that of the majority, Justice Hunter, to whose lot this record fell for examination in the first instance, not having found the case till after the opinion of the majority was filed.
It is apparently in point upon the question of difference between us, since it is in one respect like the Missouri case (27 Southwestern Reporter, 622), cited and followed, in that the plaintiff on his direct examination had exhibited his injured limb to the jury; but that feature of the case does not seem to have been urged or considered in the disposition of the appeal, for just preceding the quotation made from the opinion by Justice Hunter is the following: "The question here involved was before this court in Railway v. Findlayson, 16 Nebraska, 578 (same case, 20 Northwestern Reporter, 860), and it was held that when the request was made during the trial, and it was sought to have the examination made by experts called by the adverse party, and not by those agreed upon by the parties or appointed by the court, there was no error in denying that request. We adhere to that decision. We are aware that the Supreme Court of Wisconsin, in White v. City Railway, 21 Northwestern Reporter, 524, seems to have established a different rule; but the one adopted by this court before that decision was made seems more conducive to justice."
In the case thus referred to as authority, Railway v. Findlayson, 16 Nebraska, 578, the injured limb had not been exhibited, and it was held, contrary to the rule which we understand to prevail in this State, that the court had the power in the first instance, upon application of the defendant before the trial, to compel the plaintiff to submit to a personal examination by impartial experts agreed on by the parties or chosen by the court; but it was further held, that experts called by the defendant would not be treated as impartial.
The right of a defendant, after the plaintiff has voluntarily exhibited to the jury his injured limb in order to show the character and extent *Page 586 of the injury, to call one or more experts of his own selection to inspect the same, and diminish the force of such physical or demonstrative evidence, by way of cross-examination, does not seem to have been considered in either of the Nebraska cases. On the other hand, in the Missouri case this was the very point decided, as distinctly appears from the following quotation from the opinion: "It appears from the record that, during the trial, plaintiff was permitted to exhibit to the jury his injured leg. This was done while plaintiff was under examination as a witness in his own behalf. The evidence tended to prove that plaintiff had previously sustained an injury to the same leg at or near the same place. In a former trial, experts had been permitted to examine the leg, and testify as to its condition and the probable permanency of the injuries. After plaintiff had shown his leg to the jury on this trial, and evidence had been offered tending to prove that the injuries were greater than they appeared on the former trial to have been, defendant, as a part of the cross-examination of plaintiff, asked that physicians who had previously examined the leg might be permitted to make a further examination, and give their opinion as to its condition as compared with that when previously examined. This request the court refused, and in doing so we think it committed reversible error. The leg, when shown to the jury, became evidence in the case, which may have carried with it great weight, particularly in the matter of the damage sustained. This evidence, thus put into the case, was open to attack by the opposite party in any manner which may have tended to reduce its probative force. When, for example, a piece of machinery or material, the character or quality of which is in issue, is exhibited to the jury, it is always competent for the opposite party to have experts examine it, and give the jury their opinion of the quality of the material and the sufficiency of the machinery. When admitted in evidence, and its damaging effect has been accomplished, it can not be withdrawn until the party affected by it has had an opportunity to apply every test for the purpose of overcoming its force and effect. No reason can be urged why a different rule should be applied when an injured limb is the subject of inquiry." 27 S.W. Rep., 623, 624.
The question then, it may be added, is, must a defendant in the exercise of the right of cross-examination in such cases use only such experts as the court may select for him, or may he make his own selection? Since it is held that there exists no mode of procedure in this State such as seems to be recognized in Nebraska, authorizing a court to appoint experts to examine those suing for damages on account of personal injuries, all that seems to be left of this question is, does the right of cross-examination, where the injured part is exhibited in evidence, exist in this State?
As before seen, it is held to exist in Missouri, and we see no good reason why it should be denied here. In Nebraska and other States, where the power of the court to appoint experts and compel a party to submit to an examination by them is maintained, it is doubtless correct *Page 587 to hold, as has been intimated by our Supreme Court, that, like the appointment of surveyors to trace boundaries and make a report to the court, none but impartial experts should be appointed, and some courts have even intimated that in all cases expert witnesses should be selected by the judge; but the prevailing general rule is, and the constant practice in this State has ever been, to allow either party to call experts of his own selection, leaving the fact of bias or prejudice to the jury to affect the weight of the testimony. 1 Whart. on Ev., sec. 456; Laws. on Exp. and Opin. Ev., rule 44; Dickenson v. Inhabitants of Fitchburg, 13 Gray, 546.
If we adopt the construction of the Nebraska case insisted on to support the judgment, the right to test by way of cross-examination the seeming force of demonstrative evidence through the aid of expert testimony must be denied in this State, for the power of the court to appoint experts here is held not to exist, except by agreement, and if the party himself calls them, that fact alone, according to the Nebraska decisions, renders them incompetent. Thus a valuable right is taken away, depriving the courts and juries in the search for the truth of the light which modern science sheds upon many otherwise inexplicable phenomena. For instance, the plaintiff, without offering any expert or other testimony as to its character, exhibits a ghastly wound to the jury, which has the appearance of being incurable, and obtains a large verdict from the defendant upon a finding to that effect, when if permitted to do so the defendant could have shown it to be quite otherwise upon examination by a competent expert. The wound becomes the witness, making a mute appeal to the jury, and the defendant is without the means of cross-examination, if he can not call to his aid a medical expert.
Where the wound is not exhibited its condition must be shown by witnesses, who may then be subjected to cross-examination. Either the right to cross-examine should be allowed where the injured part is exhibited as evidence, or the right to make such exhibition should be denied. The latter right has been too often exercised to be now called in question.
One other case, also cited for the first time in the dissenting opinion, appears to be in point and at variance with the Missouri decision, that of Mills v. Wilmington (Del. Super.), 2 Hardesty, 31, 40 Atlantic Reporter, 1114; but the question was not discussed nor was any authority cited, the decision, which was by the Superior Court only, being placed upon the ground of a want of authority to compel the plaintiff to submit to an examination. The Missouri case is of higher authority, rests, we think, upon sound reason, and is promotive of justice. We therefore adhere to the ruling already made upon this point, though the question is not free from difficulty.
But inasmuch as appellee has elected by motion already submitted to have this question referred to the Supreme Court on certificate of dissent, instead of pursuing her remedy by writ of error, which would have *Page 588 brought the entire record before the Supreme Court, we have concluded, in order to facilitate the ultimate disposition of the appeal, to state our conclusions upon the issue raised by the twelfth assignment of error and discussed in advance in the dissenting opinion. This assignment complains of the argument of counsel, which is quoted in the brief as well as in the dissenting opinion, and need not be again copied here.
As we read the record, the entire argument was objected to at the time, since it is all quoted in the first paragraph of the bill of exceptions, as copied in the transcript, the second paragraph stating only the grounds of objection. Transcript, pp. 255, 257. At any rate, objection was made promptly in the very beginning of the argument, and to the very first sentence, viz: "Gentlemen of the jury, this is an unequal contest; this poor woman on one side, and this powerful corporation on the other." That was not an issue in this case, and yet counsel was permitted over objection to argue it to the jury.
This was immediately followed by the "grave charge," and argument to sustain it, "that the train crew was drunk" when the accident occurred, which seems also from the ruling made to have had the express sanction of the court. That, too, though the petition alleged gross negligence in running the train with a drunken crew, was an issue of fact not raised by the evidence. On this we are all agreed. True, the testimony of one witness, and one only out of many having the opportunity to know the facts, was offered on this point, that of G.F. Thomas, who was on the train the night of the accident. Deposing in reference to the conductor, he said: "I can not say whether he was drunk or sober of my own knowledge. I did not see anything that would indicate specially that condition. I saw nothing that would indicate it when the train got to Bridgeport." In response to a further question, he said: "I do not think that I heard anything said on the train about it;" and being asked if he heard anything said about it at Bridgeport after the train arrived, he said: "I would not undertake to say that I did. I could not say. That question has been discussed, but whether or not it was that night it is a matter I can not tell." Being asked what his impression in reference to the condition of the conductor as to sobriety was, and as to what he heard said from Fort Worth to Bridgeport, witness said: "I could not have had any impression as to that question. I can not say that I had any impression from anything I saw that night, because I do not recollect whether the impression came from conversations with reference to the matter, or from something that occurred that night. If I saw the conductor, it was only when he came through the sleeper."
Though further interrogated on cross and redirect examination about the same matter, nothing further was elicited. His testimony did not tend in the slightest to prove the charge of drunkenness. If it did, then all one is required to do in order to raise an issue of fact for discussion before the jury is to charge it and then attempt, but fail utterly, to prove it, which might easily be done in any case. Certainly the fact *Page 589 that drunkenness was charged in the petition and not specifically denied by the witnesses themselves, who were not interrogated on that subject, did not tend to prove the charge. Nor did the fact of the accident tend to prove it. If the issue of drunkenness had been in any way submitted to the jury in the charge, it would have been reversible error, because no such issue was raised by the evidence.
The evidence of negligence on the part of appellant and of contributory negligence on the part of appellee, as stated in our original opinion, was conflicting, but we are all agreed, and so find, that the preponderance of the evidence was against appellee upon both these issues. We are also all agreed that the verdict, if not excessive, which we are not now prepared to hold, was exceptionally large.
As to the other matter discussed in the argument, there were some circumstances in evidence tending to raise the inference that appellant had, through some agency not disclosed, purposely avoided having the depositions of two witnesses, both of whom, however, testified on the trial, returned into court, though appellee had propounded cross-interrogatories to these witnesses and waived commission; but the testimony of the officer taking them tended to rebut this inference. One of these depositions at least might or might not have been valuable to appellee on the trial, either as original evidence or as a means of impeachment of the witness.
Besides objecting to the argument and reserving a bill of exceptions, appellant sought a new trial upon this ground. We come, then, to the question raised by this assignment of error, viz., is appellant, upon the case made above, entitled to have this judgment reversed on account of the argument complained of?
The right of a party to be heard in the argument of his counsel upon an issue of fact raised by the evidence and submitted to the jury is of course not questioned. As said by Judge Brewer in Douglass v. Hill, 29 Kansas, 527, "It matters not how weak and inconclusive his testimony may be, if it is enough to present a disputed question of fact upon which he is entitled to a verdict of the jury, he has a right to present in the argument of his counsel his view of the case." But the rule is well settled, and was recognized in the opinion in that case, that where there is no evidence upon an issue, the right to argue it to the jury does not exist. Bankard v. Railway, 34 Md. 197; Lindley v. Railway,47 Kan. 432; Harrison v. Park, 1 J.J. Marsh. (Ky.), 173; Tucker v. Henniker, 41 N.H. 317.
Nor is the right of counsel to make the most of his client's case questioned, so long as he confines himself to the issues and evidence. As said by Judge Fowler in the leading case of Tucker v. Henniker, 41 New Hampshire, 323, "his illustrations may be as various as the resources of his genius; his argumentation as full and profound as learning can make it; and he may, if he will, give play to his wit, or wings to his imagination." But this latitude is allowed, as was held in that case, only when he is discussing issues of fact which the evidence tends in *Page 590 some measure to prove. Counsel certainly should not be allowed to evolve from his imagination and solemnly argue to the jury as an inculpating fact what he has utterly failed to prove; and this we think was done when the "grave charge" of drunkenness in the operatives of the train was "made upon the conductor and his underlings." Counsel is not even allowed to assume arguendo facts to be in the case when they are not. 2 Enc. of Pl. and Pr., pp. 727-730.
But we need not consult outside authority upon this question, for our rule 39 expressly provides that "counsel shall be required to confine the argument strictly to the evidence, and to the arguments of opposing counsel." Another and general rule provides that "any supposed violation of the rules prescribed in the conduct of a cause, to the prejudice of a party may be reserved by bill of exception, presented as a ground for new trial, and assigned as error by the party who may conceive himself aggrieved by such supposed violation."
Appellant, as already seen, has brought its complaint clearly within this general rule, and there is little room for doubt, in view of the preponderance of the evidence against the verdict, the very large sum allowed as damages, and the almost irresistible appeal alike to sympathy and prejudices permeating the entire argument complained of, that the violation of rule 39 was to appellant's prejudice. In some respects at least, as was said in Dillingham v. Scales, 78 Tex. 205, "the remarks of counsel excepted to were not justified or called for by anything legitimately belonging to the case. We can not say that they did not improperly prejudice the jury. We can not say that they exercised no influence on the jury. If they exercised any, it was an improper one. The fact that we have no means, and the jury have none, of arriving at the exact amount of damages in such cases emphasizes the importance of guarding the minds of the jury from all misleading and improper influences and appeals." See Willis v. McNeill, 57 Tex. 462; Blum v. Simpson, 17 S.W. Rep., 402; Moss v. Sanger, 12 S.W. Rep., 619; Wichita, etc., Co., v. Hobbs, 23 S.W. Rep., 923; and many other cases.
The rigid enforcement of rule 39 should perhaps be insisted on in cases of this class, for the further reason that, besides the wide discretion given the jury in assessing damages for physical pain and mental anguish, such cases are usually, as is well known to the profession, undertaken on a contingent fee, and the transcript shows that this case is not an exception to the rule, though it does not appear that the distinguished counsel who made the argument was so employed.
Be this as it may, the argument, which, taken all together, presented to the jury in burning words the plea of a poor afflicted woman against a powerful corporation running its passenger train through the country with a drunken crew, thereby making her a miserable cripple for life, and then suppressing the testimony to prevent her recovery of damages — thus blending what was put in issue by the evidence with what was not — could not, we think, have been without prejudice to appellant. It is always the province of the judge who presides at *Page 591 the trial, and not of the jury, to determine in the first instance whether or not an issue is raised by the evidence, and this rule applies to his control of the argument as well as to the matter of instructing the jury. Counsel should not, therefore, have been permitted to argue to the jury over objection, as was done in this case, that there was sufficient evidence to raise the issue of drunkenness. The approval by the court of that course was itself probably prejudicial, coupled with the circumstance that there was enough, when so skillfully handled by counsel, in the testimony of Thomas about his vague impressions — not sufficiently definite and tangible, however, to amount to evidence of any fact — to raise a damaging suspicion in the minds of the jury.
Our conclusion then is that the ruling complained of in the twelfth, as well as in the eleventh, assignment of error was both erroneous and prejudicial, and that for this additional reason the motion for rehearing should be overruled. Both questions will consequently be certified to the Supreme Court, the first upon motion of appellee and the latter upon our own motion, should it be held that the motion to certify is not broad enough to include both.
Overruled.