delivered the opinion of the Court.
Appellee stepped immediately in front, within two feet, of a moving grip car. There is nothing to show that the gripman had any notice of appellee’s presence or intentions until he suddenly appeared in front of his car, and then at once jumped back.
Nor is there any. evidence that the grip car was moving at an improper or negligent speed; or that there was any neglect on the part of the gripman in endeavoring to stop his car, so soon as he became aware of the presence of appellee; in brief, so far as the movement of the grip car is concerned, no negligence of the North Chicago Street Railway Co. is shown, unless it be in the manner in which the road was operated, so far as passing the cars of another road at this crossing is concerned.
Appellee was not a passenger, and neither of appellants owed to him any duty other than that which they each owe to all persons in the street.
The mere presence in the street of the tracks of these companies did not cause the injury to appellee. He was in-, jured because of something-done upon these tracks. Was, he exercising ordinary care, and were appellants, or either of them, negligent, and by reason of such negligence was appellee injured, were questions submitted to the court below. The judgment in this case is against both of the companies, and must be set aside if the evidence did not warrant a finding against each; for a judgment is a unit, and must fall as to all if not maintainable against each. Black on Judgments, 211; Thomas v. Lowry, 60 Ill. 512; Williams v. Chalfand, 82 Ill. 218; Kimball v. Tanner, 63 Ill. 519. The ground upon which a recovery was sought not being that appellants were negligent in the placing of their tracks, although the position occupied by them may have been in obedience to any requirement of an ordinance of the city, the court should not have permitted the same to be proven.
The following occurred during the argument before the jury. Counsel for appellee said: “ But I want to call your attention to one fact, gentlemen, and that is this: that if the railroad company had put those tracks as far apart as they should have put them, and as far apart as those tracks are on Clark street, right here, it wouldn’t make any difference how many people stood on the tracks between them, they would never have their shoulders crushed and their collar bones broken. And I say it is the duty of that railroad company, with all the privileges that they are granted by the city of Chicago, controlling almost everything that there is in the city, going over there, as you might say, owning council, body, soul and breeches, and getting anything they mind to out of the city council—owning the town—that they ought, at least, to pay some regard to the public.”
Mb. Johnson : “ I object to that.”
The Court: “Tes, that is improper. There-is nothing in the evidence here, and the. jury will disregard the remarks of counsel; the last remarks of the counsel, I mean, which were not covered by the evidence.’
Mb. Atwood : “ But the company has these privileges.”
Mb. Johnson: “No, he said they owned 'the -whole city council.”
Mb. Cbuigkshank: “We withdraw' it.”
Me. Johnson : “ You have said it now, and if it has any influence on any man in the jury, we have got the benefit of it.”
Me. Cbuickshank : “ ~W ell, that is withdrawn.”
Me. Atwood : “ Perhaps, gentlemen, I should say that the estimable gentlemen who constitute the Horth and West Side companies, who own the stock in those companies, have by various ordinances in times past acquired privileges and rights and opportunities to lay their tracks in the public streets of the city of Chicago—privileges and rights which you jurymen and I know as an individual are worth, you and I can’t tell how much.”
Me. Johnson: “I object.”
“ So, I say, if Mr. Annis’ story is correct, there is negligence on the part of the driver of the Horth Chicago cable train; in fact, he did not stop that car when he saw that man trapped in between there. He could have stopped the car if he was attending to his business. If he had the car absolutely under control, as you have seen them, with the brake ready to be set, he could have stopped that train. He knew, as another thing, better than almost anybody else could know, just how far apart these cars were as they passed this crossing, and just how many feet apart they were from Dearborn street to La Salle. For that reason he should have been extremely careful in this Clark street crossing. How, let’s look at it. That is one of the most dangerous crossings on the road. This Clark street crossing is the only crossing where the tracks are so close together. Over on Dearborn street there is a curve in there which they come around; here at La Salle street there is a curve into the tunnel. The only place where they are so close together and cross another thoroughfare and another street is that particular point, and it is the most dangerous point in the operation of the road. The most dangerous point is there, and if the driver of that grip-car had his train under his control—had his hand on the brake, as he should have had, I assert that he could have stopped that car in going eight or ten feet, and eight or ten feet is not more than the distance of from the front end of the grip back to the body of the car. The fact of the matter is, that that driver didn’t know it; didn’t see it, or, for some reason or other, didn’t have the car under his control, and therefore didn’t stop the car, but went right straight ahead.”
* * . * * * *
“ Oh, no, Mr. Policeman thinks too much of his carcass to do anything of the kind, and there is not a man on this jury that would try to do it under any circumstances; go down there and try to stand between those two cars as they passed in opposite directions. What else does he say? He says that his interest in this case is, that he didn’t want to have to report that he was the cause, in any indirect manner, of this injury. That is one of his motives in this case; outside, perhaps, of standing in with the railroad company—perhaps. We all know what the policemen are down town. They don’t want to get one of these big railroad companies down on them, for it. is a very easy thing for these railroad companies to take his head off, just like that.” . (Counsel snaps his fingers.)
Mb. Johnson : “ If the court please, I desire the record to show that I object to these remarks.”
Mr.. Atwood : “ He told you on the stand, that accidents that occurred on a crossing under his care were chargeable to him in his department. There isn’t any doubt about that; that is the way the record is kept. The man is sent there to see that there are no accidents; to see that nothing of this kind occurs.
I don’t like to say anything against an officer, I don’t like to say anything against a policeman, but we all have to confess this, that through, their constant association with police courts and such places, and arresting men and taking them in, they some way or other get the idea that the end justifies the means, and if they want to make a thing appear so and so, they make the testimony to conform to it, and, fortunately or unfortunately, it is nevertheless the fact that there are a great many policemen who do not appear to respect the obligation of an oath.”
Eestricted as is the trial judge in this State as to the matter and manner of giving instructions, the only really effective means he has for restraining counsel within the limits which are essential to a proper and fair hearing and consideration of a case, is by the power to grant a new trial when attorneys flagrantly overstep the mark.
It is not an excuse for objectionable appeals and comments that they are made in an opening argument, to which a reply can be made. Such excuse is merely to say that counsel may waste the time of the court and distract the attention of jurors by a discussion wholly immaterial to the issue to be tried, and such practice, if permitted, must result in verdicts being obtained, not upon the evidence, but upon assertions not only unwarranted, but entirely foreign to the case on trial.
A majority of. the court are of the opinion that negligence of each of appellants was shown and that as a result of the negligence of each, appellee, while in the exercise of ordinary care, was injured.
The judgment of the Superior Court is therefore affirmed.
Mr. Justice Shepard :The meeting, while both were in rapid motion, of the trains of the two companies .upon tracks so close together as the evidence disclosed, at a crowded street crossing in the heart of a great city, made a question for the jury whether that was not a necessarily dangerous operation of the roads of the two companies, and therefore negligence of itself, from which neither company can escape liability for.
The admission of the ordinance wffiich ivas offered in evidence, but refused, could not change that result. A railroad company can not avoid liability for negligence by showing that by the terms of a city ordinance it had permission, or was required, to lay its tracks upon particular lines. The liability here is not because of the tracks being laid close together, but because of the negligent operation of. the roads at a street crossing upon tracks so laid. • As to the remarks of counsel in argument, though subject to criticism, I do not think they had any effect upon the jury, followed, as they were, by what was said by the court.
Mr. Presiding Justice Gary :I concur in what Judge Shepard has written on the question of negligence.
My inclination is that a new trial should have been granted, because of the language of the attorney of the appellee, which Judge Waterman has quoted, but I do not feel Avarranted in acting upon that inclination in view of Seibert v. People, 143 Ill. 571, and therefore concur.