dissenting.
I am unable to agree with the views expressed in the majority opinion, and feel called upon to register an earnest dissent.
I have read eloquence all my life and generally with much admiration. An examination of the speech of senior counsel for the plaintiff shows rare ability. Counsel talks most eloquently, I might say most seductively, of facts not shown by the testimony in the case. *808The question to be tried was whether there was negligence upon the part of defendant’s servants which resulted in the death of plaintiff’s decedent. Counsel first said that no corporation could have either the virtue or benevolence that counsel for the defendant would “want you to think it possesses. I admire virtue wherever I see it, and virtue is worthy of reward, but, gentlemen, I am not willing that they should be compensated for their virtue at the expense of this woman and her five children.” This is followed by the statement that notwithstanding the fact that counsel were very sorry, yet, nevertheless, “why did they kick us down stairs.” Again this is followed by a statement that in times gone by the value of a human life was limited to the right to recover $5,000. Then ■ comes the statement that the corporations put that law upon the statute book. I have not noticed any testimony of that kind in the record. Afterwards comes the consideration of something which counsel for the plaintiff say does not permit a recovery. “These children will miss their father, they will miss his friendly assistance in preparing them for life’s battle. Who can estimate the value of it? Money won’t measure it. All the counsel and moral instruction, advice and help and the encouragement that a good father can give to his children, that is gone, gentlemen, and they can never have it. We ask nothing for that because the law don’t give compensation for that loss, great as it is; we get nothing for that.” Of course, the purpose was to excite sympathy for the plaintiff and the children by this sort of a reference, goon this is followed by a statement that one of the counsel for the plaintiff used to receive for his services only $1,200 a year. Counsel estimated that .five years before this trial the particular counsel had only been receiving 60 per cent, of what he was then getting. The next picture in the panorama was of the manager of the railway company as a brakeman with a brakeman’s salary. Then came a picture of the president of the company when he *809was a telegraph operator and was alleged to he earning $75 a month. Then the jury were told that the manager’s salary was $25,000 a year, while the president was drawing $50,000 a year. Then came the picture of another railroad man alleged to have been a brakeman on another railroad, but who was now claimed to be the owner of untold millions. Examination of the record and briefs will show that the rhetoric and literature of counsel for the plaintiff was seemingly inexhaustible on the subjects that were not before the court, and with which the jury had nothing whatever to do.
In Chicago, B. & Q. R. Co. v. Kellogg, 54 Neb. 127, counsel for Kellogg in his argument to the jury after the close of the testimony said, among other things: “The defendant company forces its parasites to swear in its behalf. The employees of the defendant are surrounded by superintendents and assistant superintendents, who hold them by the neck and say to them: ‘Oh, how easy I can drop you, how easy I can drop you!’ ” This court said: “That the language is totálly unwarranted by the record and not within the range of the legitimate inferences and deductions which might be drawn from the evidence; that it was calculated to arouse the passions and prejudices of the jury, too easily excited in cases like this, and instead of assisting' them to calmly inquire as to whether the plaintiff below had been injured through.the negligence of the railway company, and, if so, the extent of such injury and what amount of money would compensate him therefor, and render a verdict accordingly, this language was calculated to inspire the jury with a desire to- punish the railway company for the injury which its negligence had inflicted upon the plaintiff. That these poisonous shafts of fiery invective did their work we think is manifest from the amount of the $9,000 verdict which the jury did render. Judgments have been often assailed in this court because of the alleged misconduct of counsel for the parties in whose favor the judgments were ren*810dered.” A large number of authorities are cited in support of this position. It is then said: “These cases establish that a lawyer charged with the conduct of a case is invested with certain rights and charged with certain duties. It is his duty to use all honorable means to protect his client’s interests; and in argument, within' the limits of the deductions and inferences evidence and the legitimate to be drawn therefrom, he may not be limited, but maj comment on the conduct and credibility of witnesses and parties to the suit. On the other hand, he must act honorably and fairly with the court, opposing counsel, the jury, and the parties to the litigation. But he may not, in his conduct of the case or in his argument to the jury, go outside the record, the evidence, and the legitimate inferences deducible therefrom, and ask questions, make statements or arguments for the purpose of misleading and prejudicing the jury; and if he does so, such misconduct, if properly preserved in the record- and assigned here, will cause a reversal of the judgment procured.”
In that case no relief was given at the first hearing, but there was a rehearing, and a rather elegant criticism of the conduct of counsel for the plaintiff was placed in 55 Neb. 748. There this icourt said: “Had the court, in response to a proper objection, vigorously condemned the remarks of counsel, we think they would have left no prejudicial impression on the minds of the jury. By prompt action the defendant’s counsel might have obtained an effective antidote for the poison in Shaffer’s speech; but he failed to act, and is, therefore, not in an attitude to have his complaint now considered. We do not, however, wish to be understood as holding that a rebuke from the court, or even a complete retraction by the offending counsel,- is in all cases of this kind a sovereign remedy. If the transgression be flagrant— if the offensive remark has stricken deep, and is of such a character that neither rebuke nor retraction can entirely destroy its sinister influence — a new trial *811should be promptly awarded, regardless of the want of an objection and exception.” The true rule could not possibly be more, aptly expressed than in the language above quoted. It is certainly true that, when counsel winces and dodges under the blows of his adversary, the jury takes sides, and they are not for the man who runs away or who claims protection. The people like a fighter and they despise a coward. If the counsel who is attacked calls on the court for help, then the jury are likely to say, “Well, he knew where the shoe pinched, didn’t he?” or, “He got it in the neck and hollered, ‘Ouch’,” or, “He knew when he was licked.” The number of expressions that might be used by the jury under these circumstances is simply unlimited. The only adequate remedy is to give counsel on the other side “hot stuff.” When it is apparent that the verdict rendered by the jury is wrong, then it becomes the duty of a reviewing court to give a new trial or to cut down the judgment to reasonable limits. That is what was done in the case last cited. This court apparently did not like to establish a rule that it would in such case set aside the verdict and grant a new trial, but it reversed the judgment unless the .plaintiff would remit $2,500. The court said: “In view of the condition of the record, we are not warranted in reversing the judgment on account of misconduct of counsel; but we have concluded, after a through consideration of the evidence, that the damages are excessive, and must have been assessed while the jury were yet under the sway of counsel’s superheated eloquence.” The particular member of this court who wrote the language quoted knew what he was about, and this court seems to have fully indorsed what he did, because there is no dissent.
In Ashland Land & Live Stock Co. v. May, 51 Neb. 474, counsel for the plaintiff said to defendant’s counsel: “He (referring to defendant’s witness then on the stand) has been to you; of course, you fixed him; you have to depend upon fixing witnesses.” The trial judge appears *812in that case, as stated in the opinion, to have some of the time sustained the objections of counsel for the defendant, but at other times he failed to make any ruling, nor did he rebuke counsel for the plaintiff. This court reversed the judgment of the district court and said: “The misconduct of counsel for the prevailing party in this case could not have been otherwise than prejudicial to the defendant, especially in view of the conflicting character of the evidence.”
In Stratton v. Nye, 45 Neb. 619, counsel for the defendant in his opening statement to the jury said: “W. A. Nye in 1889 was the owner of'one-half interest in a corn shelter, in connection with Robert Gilchrist; that some time in July of thát year he sold that half interest to Mr. Gilchrist, and after this he came to town and mortgaged the same half interest which he had sold to Mr. Gilchrist.” In that case Chief Justice Norval delivered the opinion of this court. He said in the opinion: “In such opening statement it is the duty of counsel to refrain from rehearsing irrelevant and prejudicial matters or facts which are foreign to the issues; and, where counsel abuses the privilege of advocacy in his opening by rehearsing irrelevant and prejudicial matters, the court should, especially when objection is made, reprove the practice in the hearing of the jury, and as far as possible remedy the mischief by instructing the jury to disregard the prejudicial statement. The trial judge must necessarily have a broad discretion in such matters; but, if counsel abuse their privilege, or the trial court its discretion, to- the prejudice of a party, it is sufficient ground for a reversal of the case.”
In Hennies v. Vogel, 87 Ill. 242, the supreme court said: “It is the duty of the circuit court, in conducting trials by jury, to restrain every effort of the parties to bring before the jury matters which are foreign to the issues to be tried, and especially- and scrupulously to exclude all such matter when the same has a tendency to excite the prejudices of the jury against a party to the *813issue.” In that case there was a petition for a rehearing, “on the consideration of which, we became satisfied that the damages found by the jury were excessive, and a rehearing was accordingly granted.” Then the court went over the whole case on the rehearing. It was said Per Curiam: “The majority are satisfied that they (the damages) are out of all proportion to the injury inflicted.” The judgment was reversed and the cause remanded.
In Tucker v. Henniker, 41 N. H. 317, it was said in the body of the opinion: “No fault of the opposite counsel could justify a repetition of that fault by his opponent.- The jury are sworn to render a true verdict in every case, according to law and the evidence given them, and the well-established rule of judicial proceedings confines the arguments of counsel before them to comments upon and suggestions in relation to that law and evidence. * * * It is irregular and illegal for counsel to comment upon facts not proved before the jury as true, and not legally competent and admissible as evidence.” The verdict was set aside, and a new trial granted.
In Martin v. State, 63 Miss. 505, the prosecuting attorney said: “Martin is a man of bad, desperate, and dangerous character. But I am not afraid to denounce the butcher boy, althought I may, on returning to my home, find it in ashes over the heads of my defenseless wife and children.” The court said: “The prisoner was on trial for a specific offense, and it was his right under the law to be tried for that offense, upon competent evidence confined to that issue. We are of opinion that the counsel for the prosecution in the matter above quoted, passed the bounds of legitimate advocacy, and that, under the circumstances of the case, the prisoner may have been, and probably was, thereby injured. Such declarations uttered by distinguished counsel, of high moral and social standing, in any case, would inevitably tend to prejudice the jury against the prisoner.” The *814judgment was reversed because of the argument of counsel.
In Rudolph v. Landwerlen, 92 Ind. 34, counsel for tbe plaintiff said in his closing argument: “It is in evidence that this defendant is a Catholic priest, and all of his witnesses are members of his church, and it is a strange coincidence that they track the evidence of the defendant with that minuteness and precision in the use of words and language that cannot be accounted for, except, as shown by the evidence, they heard the defendant from the pulpit detail his version of the case, and they can come here and swear to his version of the case, and the defendant can absolve them from the sin. If it is one of the doctrines of the Catholic church that one of the members may swear falsely as a witness, and the priest can forgive him his sin for such false swearing, so as to absolve him from all moral guilt, it is the privilege and duty of the jury” to consider this. The court sustained an objection, and the same counsel proceeded: “The defendant is here, and, if it is not a doctrine of the Catholic church, let him stand up here and deny it, and that shall be the end of it.” The trial court refused a new trial, but a new trial was granted by the supreme court, whereupon there was a petition for a rehearing. It was overruled, and the court said: “We adhere to the conclusions reached in our original opinion.”
In Coble v. Coble, 79 N. Car. 589, counsel for the plaintiff said: “That no man who had lived-in defendant’s neighborhood could have anything but a bad character; that defendant polluted everything near him, or that he touched; that he was like the upas tree shedding- pestilence and . corruption all around him.” There was a new trial.
I have been unable to find in the bill of exceptions any sort of justification of the remarks made by counsel for the plaintiff. It is said in the majority opinion: “The plaintiff’s attorney, among other things, urges *815that his remarks complained of were induced "by the prior remarks to the jury by the defendant’s attorney.” There is nothing said in the record or in the opinion concerning the substance of these “prior remarks.” It is further said in the opinion: “These respective attorneys are, and long have been, among the leading and influential members of the bar of this state, and, from the view that we take of this record, we are fortunate in not being required to comment upon the propriety of the language complained of.” I quite agree with the majority opinion touching the fact that the respective attorneys are “among the leading and influential members of the bar of this state,” but, notwithstanding that fact, I do not see how I can conscientiously avoid making this dissent. The high social and professional standing of these gentlemen séems to the writer to have nothing to do with the subject.
One may readily understand how statements like the foregoing, which, for lack of space are not set forth in their entirety, might influence a jury, although not in any way material to the case on trial, and wholly unsupported by the evidence. This is especially true when the counsel using the language here employed is a man of fine standing in the community, of sterling integrity, of much more than average scholarship, and possesses in addition a pleasing personality along with much charm of manner and rare powers of expression, both literary and legal. The majority opinion treats the offense mildly and imposes no punishment by compelling the plaintiff through the use of a remittitur to reduce the judgment to reasonable limits. A reduction of one-third might not be out of the way in view of the pictures drawn and the seductive, impassioned, and prejudicial language used. Then other counsel by the rule which the majority opinion establishes, in other cases yet to be tried, are invited to draw pictures, on one side, of wrealth, and, on the other side, of penury. In the next case that may be tried against a railroad com*816pany for damages because of personal injuries this case will be referred to. It is cases of this kind where the courts are called upon to preserve the rights of litigants, however unpleasant it may be to punish counsel through their clients in the way suggested.. The high standing of a lawyer socially and professionally, and the fact of his exceeding good fellowship, but emphasizes the necessity for a proper observance of rules which should not be broken.
I have no attempted criticism to make of the plaintiff’s right of recovery if the case had been fairly tried under proper instructions. But where this court permits counsel in the court below, while making his closing address to the jury and after he is safe from reply, to discuss the humble origin of counsel for the defendant, the small fees they received early in their professional life, the supposed fees that they receive now, the fact that the manager of the defendant company was once a brakeman and its president once a telegraph operator, and that each now receives an immense salary, and counsel then closes with a peroration touching a millionaire never connected with the defendant railroad company and not in the railroad business for ■ half a lifetime, and all this is done without criticism or condemnation upon the part of this court, which says it may be done again under like circumstances, I feel that I am compelled to protest. The district court should have stopped the plaintiff’s counsel at once, whatever the charm of his voice, whatever his wit or his humor, however graphic the pictures he drew, and however high his standing as a citizen and at the bar. As defendant’s case was damaged, there should be a new trial.
I do not consider that the record in any way justifies the second paragraph in the syllabus.
As to the fourth paragraph in said syllabus, it does not attempt to state in what way the instruction requested by defendant’s' counsel was deficient, and if no fact, or no absence of testimony concerning supposed *817facts are referred to, then there is nothing- to consider. It seems to the writer that the paragraph should be cut out.