The only question that we desire further to notice is that raised in appellant's bill of exceptions, which is as follows: "Be it remembered that upon the trial of the above numbered and entitled cause, and while plaintiff's counsel was making his closing argument to the jury, said counsel in discussing the motives of witnesses, over the objection, protest and exception of counsel for defendant seasonably made, stated that the testimony of the employes of the defendant who testified as witnesses herein must be considered in connection with the fact that railroad employes were under the necessity of testifying in favor of the defendant in order to retain their positions; that any testimony given by them unfavorable to defendant would result in their being dismissed or discharged from the employment. To which statement by counsel for plaintiff defendant's counsel then and there excepted, on the ground that said statement was improper and unsupported by anything in the record, and requested that counsel should be restrained and the jury instructed not to consider said statements; but the court declined to interrupt counsel for plaintiff, who proceeded with his argument along that line, but before proceeding, stated that he had not finished all he had started to say when interrupted by counsel, and that he wished all he had to say in that connection to appear in the bill. Counsel then proceeded to state that jurors were at liberty to conclude that such would be the result, from the common experience of mankind and motives of interest actuating witnesses; that `each of you jurors know that if you had in your employ a servant or agent charged with certain duties, who should be guilty of a breach of the same, and you should be sued, and on the trial the said agent or servant should come upon the witness stand and admit that he had been careless and negligent and by his fault damage had been inflicted upon the parties suing you, you would instantly *Page 463 discharge him for such negligence and wrongdoing,' and that interest would constrain said agent or servant to testify favorably; that it is human nature to put the best complexion on our own acts.
"To all of which action of counsel and to the action of the court in refusing to restrain him, the defendant, then and there in open court excepted, and now here prays that this its bill of exceptions be allowed, signed, and ordered filed as part of the record herein, which is accordingly done."
The relation of master and servant and the incentive of the servants to exonerate themselves from the blame, go to their credit as witnesses. 29 Am. and Eng. Enc. of Law, p. 771.
We think it permissible for counsel, in argument to the court or jury on the facts of the case, to comment on what may be the possible or probable consequence of the testimony of any given witness, as affecting the witness personally. The servants whose negligence is alleged to have occasioned the injury certainly have an interest in the controversy to the extent of shielding themselves from the consequences that might result if it were known that they were really guilty, and that their master was liable to pecuniary punishment by reason of their wrongful conduct. In such a case, the inference is reasonable that one of the possible or probable consequences is that the master would not desire to retain the servant in his employment if it were known that he was guilty of conduct hurtful to the interests of the master; and especially in a case of this character, where the servant not only owed the duty to the master but to the public as well. Of the master in his relation to the public, who must perform his acts through servants, it could reasonably be expected that, on the score of humanity and the duty that he owed to the public, he would likely dispense with the services of a servant whose conduct is of a character that indicates that he could not be safely intrusted with the performance of such duties. We adhere to the original ruling made upon this subject, and overrule the motion for rehearing.
Motion overruled.