dissenting:
I would remand the case for a new trial.
I consider the misconduct of plaintiff’s counsel so opprobrious as to have caused a deterioration of the Judicial Process, to the extent that a fair trial was denied the defendant. Defendant has cited six instances of plaintiff’s deliberate attempts to inflame and prejudice the jury by irrelevant and immaterial cross examination. It cites an additional thirteen instances of inflammatory remarks and attempts to supply evidence in plaintiff’s closing argument. In addition numerous instances are cited of plaintiff’s counsel answering questions which were propounded to witnesses and volunteering evidence which was not in the record.
In many instances there was no opportunity to object until after the prejudicial comment had been made and the damage done. This was an eye injury case, however plaintiff’s counsel’s first question on cross examination to the defendant’s witness, Metil, was: “What do you call a man with a leg off?” Notwithstanding defendant’s objection which was sustained, plaintiff’s counsel continued this line of inquiry , by asking whether a man with a leg off would maintain his seniority and whether as a trainman, he would work with one leg off. He then asked the following double question, “How many legs have been cut off by the Pennsylvania Railroad? How many men have lost limbs who are not working?” Although the defendant’s objection was again sustained, the question was so inflammatory and prejudicial as to cause irreparable harm. The obvious purpose of these questions, and of others cited, along with statements volunteered by plaintiff’s counsel, was not to elicit information or present material facts to the jury, but to inflame the jury against the defendant. Continued objections to such serious and numerous indiscretions would only serve to magnify the harm, particularly in view of the trial court’s failure to severely admonish plaintiff’s counsel, and the trial court’s routine “objection sustained” to highly prejudicial, and inflammatory remarks and questions.
A duty devolves upon a trial court to inject itself into the proceedings sufficiently to see that the litigants receive a fair trial; and it is always the duty of a trial court to control the proceedings to the extent necessary to insure this result, and in discharging this duty it is not always enough that the court sustain objections, but in a proper case should act promptly to stop misconduct. Bishop v. Chicago Junction Ry. Co., 289 Ill 63, 124 NE 312; Belfield v. Coop, 8 Ill2d 293, 134 NE2d 249.
The prejudicial effect was not that the jury received improper evidence upon which to base their verdict, but that they were continually subjected to inflammatory remarks and arguments which prejudiced their minds against the defendant, as was obviously intended. If counsel’s wrongful conduct, even though not objected to in the trial court, is such as to interfere with a fair trial and Judicial Process, it may be considered for the first time on appeal. Belfield v. Coop, supra; Muscarella v. Peterson, 20 Ill2d 548, 170 NE2d 564; City of Quincy v. V. E. Best Plumbing & Heating Supply Co., 17 Ill2d 570, 162 NE2d 373; Illinois Law and Practice, Vol 2; Appeal and Error, Sec 263, 1065 Cum Annual Pocket Part.
While the trial court is vested with great discretion, in determining whether or not a new trial should be granted, and its decision should not be disturbed unless it satisfactorily appears from the record that such discretion has been abused, where the trial court has failed to use its authority to restrain the efforts of an attorney to obtain a verdict by using unfair means, and making remarks outside of the evidence calculated only to arouse the prejudice and passions of the jury, it would appear that the reviewing court should consider the trial court’s failure to promptly stop repeated misconduct and persistent over indulgence in unfair tactics as an abuse of judicial discretion. To say that since the result is one which a jury might have reasonably reached had there been a fair trial, contributes nothing to the preservation of the requirements of orderly procedure, professional propriety, or the prevention of the deterioration of the judicial process.
I would agree in this case that the jury could have found that the accumulation of litter and debris was sufficient negligence on defendant’s part to satisfy the requirement of liability under the Federal Employers’ Liability Act, without regard to what part, if any, the condition of the door may have played in the occurrence. The record does not show that they so found. But the fact that they might have so found, without the proof of custom and usage does not deny defendant the right to present such evidence. Had the jury heard the offered evidence, they could likewise have found that an article foreign to defendant’s railway operation blew through the customarily open door into plaintiff’s eye. Causation was an essential element of plaintiff’s cause of action and defendant’s proffered evidence tending to show that the doors would have been open regardless of their defective condition, was relevant to the issue of causation, particularly when it was only by inference that the jury could find that the accumulation of litter was the probable cause. Plaintiff had pleaded the defective door and that because the door was open the accident occurred. Defendant had denied this allegation. While custom regarding the open door was not material to the issue of negligence in allowing litter to accumulate, and failure to furnish a safe place to work, it was competent evidence in defense of the allegations concerning the defective door.
“The custom of a party, or his employees or the course of conducting his business may become relevant and material in an action involving some claim of liability arising out of such business.” 31 A Corpus Juris Secundum, section 180, page 457.
In addition to the custom or usage, the offer of proof included the reason for the custom — “that it is necessary to have the doors opened in order to have proper ventilation in the caboose in hot weather” by the witness Barnett, who testified that he was a switching conductor in the Bose Lake Yard since 1924. Neither his qualification as an opinion witness nor his knowledge of the practice was questioned. I fail to find anything in the record that discloses that the offer was made for the purpose of showing that the custom of keeping the doors open in hot weather, was necessary for the proper ventilation of the caboose; furthermore plaintiff’s objection to the offered proof of custom was that it suggested that the employees “were content to work with less than what the law prescribed — to expose themselves to conditions that they are not, under the law obliged to assume” and made no mention of plaintiff’s including, in the offer of proof of the custom, the reason for the custom. The court denied the offer “for the reasons Mr. Mc-Glynn has stated.” This could reasonably lead the jury to believe that this was a pronouncement by the court that the plaintiff employee was working “with less than what the law prescribed.”
The defendant was not contending that the evidence it sought to offer was a defense as a matter of law, but only a defense as a matter of fact to one charge of negligence that plaintiff had pleaded and defendant had denied. The question in this case is not whether there was any theory that the jury could adopt to support the verdict, as in the Gallick case cited in the opinion, but whether a ruling on evidence was correct.
Here the offered proof of custom and usage was relevant and material, one currently observed in the business and known or presumably known by plaintiff, and conflicted with no rule or law or statute. See Callaghan’s Illinois Evidence, Sec 5.64 and cases cited therein.