(dissenting.) It is stated in the opinion that the “evidence fully sustains the verdict.” This is correct only upon the assumption that the jury might have disregarded the testimony of the engineer and fireman. The testimony of these-witnesses makes a clear case of accidental killing. The engineer, in substance, testified that he was going north; that it was in the night; that there was a road crossing between 200 and 250 yards south of where the animal was killed, and that he whistled at the road crossing; that he saw a white animal pass suddenly across in front of his engine just as he rounded the curve; and just as he reached the point where this animal had passed in front of his engine he felt the engine strike something. He never saw but the one animal. He stated that as best he could tell the engine struck something on the left side. The testimony of the plaintiff’s witnesses showed that the animal was a dark mule colt, 2 years old. The engineer further testified that it was impossible for him to have stopped the engine from the time that the white mare came in view until he reached the point where the mare was, and that there was no occasion for stopping, as he saw the mare pass across where the animal was injured, and that no other animal was in view. The fireman corroborated the testimony of the engineer. If the jury had believed their testimony, the verdict must have been for the appellant. It is conceded in the opinion that the remarks of counsel were “improper,” and it is said that the court should have been more “emphatic in dealing with them.” Still, the judgment is not reversed on account of the error; the court saying that the “verdict is responsive to the evidence, and not to the improper remarks.” But how does this court know that? The testimony of the witnesses for appellant was evidence in the case. The appellant, of course, had the legal right to present its evidence, and have the jury to consider it. It was within the province of the jury to disbelieve it, and this they must have done, or their verdict would have been for the appellant.
Now, who can say why the jury did not believe the witnesses for appellant? Who can say that the erroneous remarks did not prejudice the minds of the jury against the witnesses for appellant? These remarks were well calculated, and doubtless were intended, to have that effect. To say that appellant would present “the same old stereotyped defense that the mule ran upon the track, and they did not have time to avoid the killing after they saw it,” was but a charge, indirectly if not directly, of corruption on the part of appellant. If appellant had a fixed defense which it used on all occasions, regardless of what the merit or truth of the matter might be, then clearly it was in the habit of corrupting its witnesses. For, in order to present this “stereotyped” defense on all occasions, its witnesses must be prepared for it. The language was derogatory to appellant and its witnesses. Certainly, the remarks could have had no other effect than to disparage the cause of appellant, and prejudice the minds of the jury in advance against whatever defense it might make, and also against the witnesses it might call to testify. If the trial court had stopped counsel, or had excluded the improper remarks, or had signified its disapproval of such statement, and instructed the jury to disregard same, I should not hesitate to say that the error was cured But the' trial court, it appears, in response to the improper argument, not only permitted it, but even sanctioned it. The court had no right to be “liberal” in permitting counsel to go beyond the plain provisions of the statute in his opening statement.
As the error was palpable, and no attempt whatever was made to cure it, and as there was great conflict in the evidence, it seems to me, with the utmost respect for the majority, that we must reverse on account of it or else in effect overrule the cases which hold that where error occurs a reversal must follow, unless it affirmatively appears that no prejudice resulted. In other words, on review here to correct errors, if an error appears in the record, it will be presumed that prejudice resulted, unless the contrary is affirmatively shown. Magness v. State, 67 Ark. 594; St. Louis & S. F. R. Co. v. Crabtree, 69 Ark. 134.