Certiorari to review the opinion and judgment of the St. Louis Court of Appeals, reversing and remanding the judgment of the Circuit Court of the City of St. Louis in the case of Clara Myer v. Rolla Wells, receiver of the United Railways Company, appellant, 277 S.W. 585.
About nine P.M. on February 23, 1923, the relator was riding in an automobile driven by Morris Schneider, the owner of the automobile, westward on Olive Street in the city of St. Louis. There were many automobiles parked on the north side of the street, in consequence of which Schneider drove his car with its left wheels on the south side of the north rail of the north street-car track. Before entering Olive Street Schneider looked and saw no west-bound street car. While driving about ten miles per hour, with the tail light on his automobile burning, a west-bound street car ran into the rear end of the automobile, inflicting serious bodily injuries on the relator.
The case was submitted on the humanitarian rule and the Vigilant Watch Ordinance, resulting in a verdict and judgment for the relator for $7,500. We quote from the opinion:
"The motorman and conductor of the street car, called on behalf of defendant, testified that as the street car proceeded west the automobile in which plaintiff was riding ran suddenly and at a rapid rate of speed out of an alley or driveway on the north side of Olive Street directly in front of the street car; that as the automobile turned to the west it was struck by the street car and was shoved against another automobile parked on the north side of Olive; that the street car was running at a speed of about ten miles per hour as it approached the alley or driveway; that the car was stopped within a *Page 189 distance of two and one-half to three feet after it collided with the automobile; that the car was stopped as soon as it was possible to stop it after the automobile came into the danger zone; that the car ran eight to nine feet after the brakes were applied before it collided with the automobile; that there were automobiles parked all along the north side of Olive; and that the distance between the parked automobiles and the overhang of the street car was about four feet.
"The conductor of the street car, called as a witness for plaintiff in rebuttal, testified that at the time of the accident there were ten or twelve passengers on his car, and that he got the names of the passengers and forwarded them with his report of the accident to the foreman of his district. Defendant's counsel unavailingly moved to strike out this testimony. In the colloquy that ensued between the court and counsel, plaintiff's counsel remarked: `They had the witnesses but didn't produce them.' Objection to this remark, with a request to strike it out, made by defendant's counsel, was overruled by the court. Whereupon on cross-examination of the witness defendant's counsel asked: `Did any of the passengers tell you that they saw the accident?' Objection to this question by plaintiff's counsel was sustained by the court.
"Defendant assigns reversible error on the part of the trial court for permitting the plaintiff's counsel to argue to the jury, over the objections and exceptions of defendant, as follows: `Now, let us look at the conductor's testimony. He says there were ten or twelve passengers on that car and they saw the accident. The testimony is they took their names and that they were sent to the United Railways. The plaintiff was taken away in an ambulance and she had no opportunity to get names of witnesses. We don't know who they are, had no opportunity of knowing. There was no one described them and they are not here, none of them.'
"This argument was highly improper and prejudicial. There is no justification or excuse for it in the record. There was no such relation existing between the passengers and the defendant as to warrant the jury in drawing any inference unfavorable to the defendant for failing to produce the passengers as witnesses." (P. 586).
In Evans v. Trenton, 112 Mo. 390, 401, the court said, in substance, quoting from well considered cases, that great freedom is allowed to an attorney in the conduct of his client's cause; the range of discussion is wide. In his addresses to the jury he may discuss the facts proved or admitted and the inferences that may legitimately be drawn therefrom; arraign the conduct of the parties; impugn, excuse, justify or condemn motives, so far as developed in the evidence; assail the credibility of the witnesses when impeached by direct evidence or by the inconsistency or incoherence of their testimony. He *Page 190 may give play to his wit and wing to his imagination, so long as his argument is pertinent and within the record, but he takes the hazard of its not being so. Statements of facts not proved and comments thereon are outside of a cause. It is his duty to make the most of his client's case, but he is outside of his duty and right when he travels outside of his client's case and assumes to supply its deficiency. In speaking of the discretion of the judge in determining what is legitimate argument the court said: (p. 401): "On the contrary it is his duty to exercise a reasonable control over the conduct of counsel, and to check an abuse of the privilege of argument. It was aptly said by the Supreme Court of North Carolina in Davis v. Hill, 75 N.C. 224, that no duty incumbent on the judge of a trial court is more imperative or more important to the fair and orderly administration of justice, than that of interposing to restrain everything in the course of the trial that tends to mislead a jury, and to divert their minds from the strict line of inquiry with which they are charged. The duty of the trial judge in this respect is universally recognized. And it is also well settled that the trial judge, being familiar with all the facts and circumstances, as well as the shades of the evidence, must necessarily have a broad discretion in the control of an argument, and `it is only in cases where its discretion has been manifestly abused in such matters, that the appellate courts will interfere.'"
We have quoted from the opinion of the learned Court of Appeals the summary of the testimony of the motorman and conductor as to the circumstances connected with the collision. It appears from the testimony of the conductor that he took down the names and addresses of ten or twelve passengers on the street car and sent them with his report of the accident to the foreman of his district. The Court of Appeals holds that the remarks of relator's counsel to the jury, which are set out, were improper and prejudicial.
In Kirk v. Middlebrook, 201 Mo. 245, 288, 100 S.W. 450, Judge LAMM quoted approvingly the language of Lord Mansfield in Blatch v. Archer (Cowper, 63, 65) viz: "All evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted."
The evidence of the motorman and conductor was in direct conflict with the evidence adduced by the plaintiff. The conductor had furnished an official of the street railway company the names of ten or twelve passengers on the street car who, it may fairly be inferred, had an opportunity to observe the collision. In the light of human experience it may be assumed that the names and addresses of these passengers were furnished by the conductor in the course of his duty that they might be used by the defendant as witnesses in case of litigation over the collision. Else why did the conductor furnish their *Page 191 names? The defendant knew the names and addresses of the passengers; it was within its power to have produced them as witnesses at the trial. Would they have corroborated the evidence of the motorman and conductor? The plaintiff did not know their names or addresses and it was not within her power to have produced them as witnesses.
In McCord v. Schaff, 279 Mo. 558, 565, 216 S.W. 320, we said: "It has been held that failure of a party to call witnesses within his power who know vital facts affecting the issue upon which the case is tried, is taken as a strong circumstance against such party." (Citing cases.)
In State v. Kester, 201 S.W. (Mo.) 62, quoting syl. 4, we said: "Where one accused of felonious assault had testified to the fact that he was accompanied by three others, and only two of the others, who were his brothers, testified, it was not error for the prosecuting attorney to comment on the failure to produce the third man to testify that no shot was fired." In the opinion it is said: "A remark of this character, while based on the evident inference that if an absent witness' testimony would corroborate the defendant, he would have called him, otherwise not, is nevertheless free from prejudice because its extent is simply to inquire why a witness was not produced, and is held, here and elsewhere, to constitute a legitimate conclusion which may be made in argument to the jury." (Citing cases.)
This question was considered at some length in City of Kennett v. Construction Company, 273 Mo. 279, 294, VI, 202 S.W. 558, where Judge WALKER cites cases illustrating the "liberal latitude" allowed counsel in their deductions from the evidence.
In Atkinson v. United Rys. Co., 286 Mo. 634, 640, 228 S.W. 483, WHITE, J., said: "Where a party fails to call a witness under his control, or with whose testimony he is particularly acquainted, and of which the other party is ignorant, it is not improper for counsel on the other side to comment on the failure to produce such witness. . . . The rule seems to be general that no unfavorable inference may be drawn, and no unfavorable comment be made, by counsel in his arguments on account of the absence of a witness whose evidence is equally accessible to both parties."
Our conclusion is that the learned trial judge did not err in overruling the objection to the argument of counsel assigned as error, and that the opinion of the learned Court of Appeals in this respect is in conflict with the controlling decisions of this court. The opinion and judgment of the Court of Appeals is therefore quashed. Railey, C., not sitting.