Scott v. Chicago, Milwaukee & St. Paul R'y Co.

ON REHEARING.

Seevers, J.

*3633. new trial: statements of mentto’jury no ground. for. *362Counsel for the appellant insists, in a petition for a rehearing, that counsel for the plaintiff did make use *363°f improper language when lie addressed tlie jury, which was prejudicial to the defendant, The language complained of is as follows: “The . ' , . conductor and engineer who testified m this case did not stand before the court as disinterested witnesses; that they were employes of the defendant, and were liable to defendant for any damages caused through their fault or negligence.” It may he conceded that the latter part of this statement, as a legal proposition, is incorrect, and the preceding statement is based thereon. Counsel must be permitted some latitude and discretion in addressing a jury, and if absolute correctness of statement is required, new trials for failure in this respect, we apprehend, will have to be granted in almost every contested case. Counsel further said “that the plaintiff would have been held liable to the owner of the hay land referred to in evidence if the plaintiff had permitted the cattle to go thereon and damage the owner of said hay land.” At most, this amounts to an assertion of an incorrect proposition of law. Ve are unable to conclude that wliat was said by counsel could have been prejudicial to tbe defendant, and we confess we are unable to say that what was said would warrant the court in granting a new trial.

The petition for rehearing is

Overruled.