We propose to consider but two points arising upon this record, viz.: (1) Whether there was error in the striking out and excluding form the jury, the answer of the witness Elvey, as set out in our statement of the case-(2) Whether there was such misconduct of counsel for defendant, in his address to the jury, as requires a reversal.
As to the first point we are of opinion that the answer of the witness which the court excluded, was material and proper. There was nothing in plaintiff’s declaration to limit her to a particular hole or ' spot in the sidewalk, as being the one which caused the injury. The injury occurred in the night time, the sidewalk was covered with' snow to the depth of about a foot. The street was much traveled, and upon investigation the next 'day, the hole her foot went into could not be located. But the depth down her foot went, and the manner in which it was fastened and held there"—facts which were shown by undisputed evidence, not only tended to prove, but demonstrated that it was not the mere snow that held her so fast, but that her foot had been caught in a hole in the sidewalk itself. Here was the peculiarity of the case; the particular hole or spot could not be jointed out or identified, al though the undisputed evidence was, that it was somewhere along the sixty feet of the sidewalk fronting a certain vacant lot of that width. How, under such circumstances, was it not competent for the plaintiff, upon both the question of notice to and negligence of, the city authorities, as well as of the consequential injury to her, to show that the principal portions of said sixty feet of sidewalk were in a bad condition, having holes into which her foot might have been caught, as it was, and how long such portions had been so, prior to the accident ? We do not regard the point as debatable. The exclusion was error.
The second point may be said to involve two propositions: one, whether the words and conduct of one of the counsel for defendant, as set out in our statement of the case, were improper; and secondly, if so, whether the impropriety was such as to call for a reversal of the judgment.
From our examination of the record, we are of opinion that the statements of said counsel as respected other cases, that this case was based upon fraud and perjury maintained by a conspiracy between Gibbons, plaintiff’s attorney, and Dr. Angear,. was a black mailing scheme to extort money out of the city, that Mrs. Chase was very little interested in the verdict, that the amount of the verdict which the jury might give her would be divided into three equal parts, one third going to Mrs. Chase, one third to Dr. Angear, one third to John Gibbons, were improper, because not warranted by, and without any just foundation in the testimony adduced on the trial.
The remaining question is, were these statements and the conduct of the counsel in making them, sufficient to call for a reversal of the judgment. In answering that question, we shall waive the opportunity f.or homilies upon professional conduct, and endeavor to treat it in a practical way. The fact that plaintiff was injured in the manner and to the degree specified in our statement of the case, was shown by the testimony of the plaintiff herself, by the wife of Dr. Angear, who accompanied her to church and on her return, and by Miss Emily Chase, whom defendant introduced as a witness; about that there was no conflict. Then the evidence on behalf of plaintiff strongly tended to show that the sidewalk in front of said vacant lot had, for months before the falling of the snow which covered it at the time of the accident, been in such had condition as to render it highly probable that it had holes in it of a dangerous character, when covered with snow. The manner of the injury almost forced the conclusion that plaintiff’s foot caught (in some one of those holes. The evidence tending to show notice to the city, was sufficient to go to the jury; and there is no pretense that plaintiff was not in the exercise of ordinary care. Such was the case to be submitted to the jury, when the defendant’s counsel comes to them in the character, real or assumed, of special guardian of the interests of taxpayers, and makes the statements complained of.
There are cogent reasons why appellate courts should be careful and critical in recognizing alleged improper statements of counsel in argument, as affording ground for reversal.
But every case must depend upon its own circumstances. It would seem consistent with the ordinary principles upon which justice is administered, that, if in this case, the statements complained of were material, and this court can see from an examination of the evidence that they were likely to, and probably did, wrongly influence and mislead the jury to return "a verdict against the plaintiff to her manifest prejudice, this court should redress the wrong by reversing the judgment. We think such was the case, and on account of those statements and the other error pointed out, the judgment must be reversed and cause remanded.
Judgment reversed.