I think the verdict not only excessive, but, as well, contrary to the clear weight of evidence.
The verdict quite likely reflects the following appeal of counsel for plaintiff to passion and prejudice: *Page 91
"There has been some insinuation on the part of counsel for the defense and they have raised the question of manufacturing evidence. I wish to state to you, gentlemen of the jury, that some of you are acquainted with this old gentleman who voluntarily took the witness stand, old crippled John, that this silver-tongued slippery attorney for the North Western —
"Mr. Ryall: I think I ought to take an exception to that, if the court please, in view of the fact —
"The Court: That is improper. The expression 'slippery attorney' is entirely improper and you should not have used it. Do not repeat it. The jury will disregard it. * * *
"Counsel insinuated that there was a manufacturing of evidence. I believe that most of you gentlemen know John Krinak. Counsel said it was an insult to the intelligence of you gentlemen to bring a case of this nature into court. It is the same old line, gentlemen, that the attorneys for the railroad company have developed over years of defense practice. I don't blame him; he just naturally falls into that rut. It is the same old line. When an attorney will stoop to such a level and stray away from the facts and get down to the level of practically trying to brand this poor old man as a perjurer, then he certainly must have a slim case.
"We are not asking you to violate your oaths as jurors. You have never been asked by an attorney for the plaintiff in any case to violate your oaths as jurors. We want you to cling to your oaths as jurors, and when you do, gentlemen of the jury, you will bring in a verdict in favor of this old gentleman who for 30 years was in the employ of the Chicago and North Western Railway Company and was discharged and dismissed because he wouldn't sign a waiver of pension after lie was injured."
In Minneapolis, etc., R. Co. v. Moquin, 283 U.S. 520 (51 Sup. Ct. 501), the court reviewed the failure *Page 92 of a State court to grant a new trial in a case under the Federal employers' liability act, where the verdict was obtained by appeals to passion and prejudice. The court stated:
"Nor need we inquire into the rules applicable in trials under State law. Whether under the State's jurisprudence the present record would entitle petitioner to a new trial or to such a conditional order as was awarded is immaterial.
"In actions under the Federal statute no verdict can he permitted to stand which is found to be in any degree the result of appeals to passion and prejudice. Obviously such means may be quite as effective to beget a wholly wrong verdict as to produce an excessive one. A litigant gaining a verdict thereby will not be permitted the benefit of calculation, which can be little better than speculation, as to the extent of the wrong inflicted upon his opponent."
The judgment was reversed.
It is said, however, in the brief for plaintiff, that the argument complained of does not appear in the transcript. The defendant moved for a new trial and the argument quoted was stated as one reason and considered by the court in denying the motion.
After the accident the switch stand was removed and stored by defendant and brought into court, showed three rivets holding the splice and disclosed that the standard was rigid.
Plaintiff's case depended upon acceptance by the jury of the testimony of John Krinak, and, when he was confronted with the switch, he claimed that the switch from which plaintiff fell wag higher than the one in court. If the switch in court was the one from which plaintiff claims he fell there was no case made against defendant. *Page 93
The great weight of evidence established the fact that the switch in court was the one from which plaintiff claims he fell and that there had been no change made in it.
The verdict is reversed, and a new trial granted, with costs to defendant.
BUTZEL, C.J., and CLARK, NORTH, and FEAD, JJ., concurred with WIEST, J.