At a former term of this court, in considering the appeal in this case, two assignments of error were sustained, and the judgment of the trial court was reversed, and the cause remanded, as shown in 255 S.W. 796. A writ of error was granted by the Supreme Court, which reversed our decision, and the cause was remanded to this court for a disposition of the assignments of error which we had not determined, as shown in volume 267 S.W. 463.
For a statement of the facts of the case, the issues of negligence involved, and the judgment rendered in the trial court, from *Page 992 which the appeal was prosecuted, reference is now made to our former opinion.
We shall now determine other questions presented by appellants that were not discussed in our former opinion.
As said in our former opinion, the evidence showed that the conductor of the train did not see Emberlin before he was struck and killed, nor was there any proof that the fireman, who did not testify upon the trial, saw deceased before he was killed. The only effort made by plaintiff to sustain her allegation of negligence after discovered peril was the introduction of the testimony tending to show that the peril of deceased was discovered by the engineer in time to have avoided killing him.
Issue No. 7, submitted by the court, was as follows:
"Did the operatives of the locomotive or either of them, at the time in question, see the deceased, and know of his peril in time that they could, by the use of the means at hand, and with safety to the locomotive and train, have stopped the same in time to have avoided killing the deceased? Answer `yes' or `no.'"
Objection was urged by appellant at the time of submission of the issue that it was erroneous because it was a combination of two issues which should be submitted separately — the two issues being, first, whether or not the operatives of the locomotive or either of them discovered Emberlin's peril before he was struck; and, the second, whether that discovery was made in time to have enabled the operatives to avoid killing him. The only proof offered to show when such discovery was made was the testimony of Vaughn, the engineer himself, and that testimony was uncontroverted. That left as the only controverted issue of fact the one whether the discovery so made was in time to have avoided killing Emberlin. Under such circumstances the assignment based on the objection above noted to issue No. 7 is overruled.
We overrule the further assignment of error to the submission of that issue on the ground that it embraced the question as to whether or not some operative of the locomotive other than the engineer discovered Emberlin's peril in time to have avoided killing him, since that objection was not urged to the issue before or at the time it was submitted to the jury, and it was therefore waived. V. S. Tex. Civ. Statutes, art. 1971.
Our conclusion on the former hearing, that the evidence showed conclusively as a question of law that Emberlin was guilty of negligence proximately contributing to his death, included the further minor conclusion then reached that such negligence was established by such an overwhelming weight of the testimony as to require this court to set aside the finding of the jury on that issue, and we now affirm that conclusion. Barron v. H. E. W. T. Ry. Co. (Tex.Com.App.) 249 S.W. 825; Lilienthal v. Motor Car Indemnity Exchange (Tex.Com.App.) 239 S.W. 906; Turley v. Campbell (Tex.Com.App.) 241 S.W. 682; Brown v. City Service Co. (Tex.Com.App.) 245 S.W. 656; Tweed v. W. U. Tel. Co.,107 Tex. 247, 166 S.W. 696, 177 S.W. 957; Marshburn v. Stewart (Tex. Sup.) 260 S.W. 565.
But we are unable to sustain appellants' contention that the proof offered by appellee to support her allegation of negligence of the engineer after he discovered Emberlin's peril, and that such negligence was the proximate cause of his death, was so meager as to require this court to set aside the finding of the jury on that issue. However, we believe that the weight of such evidence may properly be considered in determining whether or Dot improper argument made to the jury by plaintiff's counsel, and his effort to present inadmissible testimony, operated to appellants' prejudice, as contended by appellants in assignments of error, hereinafter discussed, and in view of the rule announced in authorities cited in our former opinion, that the burden was upon plaintiff to prove actual knowledge of the engineer of Emberlin's peril in time to have avoided killing him.
Another assignment of error, which was made one of the grounds in defendants' motions for new trial, reads as follows:
"That the court erred in rendering judgment on the findings of the jury herein on their verdict of $20,000 damages in this cause, and in failing to set aside such finding for the reason, under the undisputed evidence in this case, said amount was so exorbitant and excessive that it shows upon its face that the jury in rendering such verdict was influenced by improper motives, and was biased and prejudiced against this defendant, in that the evidence of disinterested witnesses in this case shows that the deceased had never during his lifetime earned any more than a bare living, and that during his past life had accumulated nothing, and further shows that the wages that the said deceased was earning at the time of his death and immediately prior thereto was due to the fact that the times were extraordinary, being times of oil development and oil boom and unstable times, and the evidence shows herein, and in view of such disinterested evidence, and the further fact that there is no evidence in this record showing or tending to show the age of the plaintiff herein or her condition of health, or her probable life expectancy, the verdict of the jury and the judgment of the court based thereon is excessive, exorbitant, and wholly out of proportion and the court erred in rendering judgment on such verdict."
Prior to the filing of appellants' motions for new trial the court had already over-ruled their motions to set aside the verdict of the jury for several alleged errors, one of which was that the finding of damages in plaintiff's favor for $20,000 was excessive. *Page 993
Unless the verdict had been set aside, the court had no other alternative than to enter a judgment in accordance therewith. Ablowich v. Greenville Nat. Bank, 95 Tex. 429, 67 S.W. 79, 881; Waller v. Lilse,96 Tex. 21, 70 S.W. 17. But we are of the opinion that the assignment copied above, when considered in the light of the prior motion to set aside the verdict, is sufficient to direct the attention of the trial court and this court to the error complained of. Article 1612, V. S. Tex. Civ. Statutes; Morrison v. Neely, 231 S.W. 728, by the Commission of Appeals, and adopted by the Supreme Court; Harlington Land Water Co. v. Houston Motor Car Co. (Tex.Com.App.) 209 S.W. 146; Rone v. Marti (Tex.Civ.App.) 244 S.W. 640; Barkley v. Gibbs (Tex.Com.App.) 227 S.W. 1099; Southern Traction Co. v. Wilson, (Tex.Com.App.) 254 S.W. 1104.
The following proceedings were shown by a bill of exception appearing in the record:
"Mr. W. A. Shields, one of the plaintiff's attorneys, in his argument of his case to the jury, made the following argument: `You take all of that stuff and throw it to the winds, you can do it in your manhood, and let the sunshine of God in your hearts, and you will lay your hand upon your heart and will say in the strength of my manhood, I am going to do what is right in this case, regardless of argument, and am going to give this good woman what is coming to her in this case. Sometimes a jury will say, we will let them down with a little verdict and it will be settled. Don't be misled, if you come in here with a verdict like Bill Evans wants you to give, for $6,000, it will not be settled, for the case will be appealed just the same; you give this woman enough to compensate her for her injuries and damages she has sustained.'
"Immediately after that argument was made, defendants' counsel objected to it on the ground that it was highly improper and calculated to inflame the minds of the jurors and prejudice them against the defendants, and especially objected to that portion of the argument in which the statement was made that the defendants would appeal the case if a verdict was rendered against them. The court approved the bill with the following explanation: `At the time plaintiff's counsel made the argument, defendant's counsel objected, and the court thereupon stopped the argument of counsel and instructed the jury not to consider the remarks of counsel complained of for any purpose. Defendants at no time presented or requested a written charge to the jury or made any objection to the action of the court in instructing the jury as hereinbefore stated, and made no further objection of any kind to the argument of plaintiff's counsel set out in this bill.'
"Immediately after the foregoing argument was made, Mr. W. A. Shields, counsel for plaintiff, made this further argument: `But I know as well as I know anything on this earth that they are expecting to get this jury to cut down the amount of this verdict — that is their hope, and that is their only hope, and that is their ultimate desire in this case to get this verdict cut down; that is what they are trying to do. When you go out to discuss this case, don't discuss anything but the facts in the case; don't discuss anything but the evidence from the witness stand. If any of you happen to know of any facts in connection with the case keep it to yourself; don't discuss the case any time except in the jury room; only consider it as a body as a jury. Don't arrive at the verdict by lot. Don't set down each man what you think she ought to have and divide it by twelve and then get the average; that is not the law. You all have to agree on a verdict, you have got to discuss it with each other; you have got to agree on it as one body of twelve men, all agreeing to the same thing. I make these suggestions because I want you to bring a verdict that will be legal and stand up in the higher courts. I make these suggestions to you, and want you to go out and sit down and figure out what these railroad companies owe this woman, and make that the amount of your verdict.'"
The record shows a bill of exception by defendants' counsel to that argument, on substantially the same grounds as were urged to the argument above noted. The bill of exception was approved by the trial judge with the following explanation:
"The argument complained of was not called to the attention of the court, and defendants' counsel made no objection to the same, neither during the argument nor at any time before the jury returned their verdict, and the first time the court's attention was ever called to the fact that such argument had been made was when the amended motions of the defendants for a new trial were presented to the court."
Another bill of exception appears in the record which shows the following:
"While this case was being argued to the jury, Mr. W. A. Shields, one of the plaintiff's attorneys, in arguing the case to the jury, argued to the jury in effect that there were thirteen lawyers representing the defendants in this case and that there were more lawyers representing the defendants than there were jurors sitting on the case; and,
"Be it remembered further that the said W. A. Shields illustrated such argument by exhibiting to the jury one of the special issues requested by defendants' said special issue, being signed by the following firms of lawyers, to wit: Thompson, Barwise, Wharton Hiner, Levy Evans, John F. Evans, Jr., McCartney, Foster McGee, and Goree, Allen Odell — and said special issue being one of the requested instructions, which was requested by all of the defendants in the case, and,
"Be it remembered further that there were in the trial of the case actively present in the courtroom only six lawyers representing the defendants, and that three of these lawyers were representing one of the defendants and that three of these lawyers were representing two of the other defendants, and defendants do here now tender this their bill of exception to *Page 994 such argument of the said Shields, and say that the same was so inflammatory and outside of the record in the case, and was reasonably calculated to inflame the minds of the jurors and prejudice the case of the defendants with the jury and arouse their bias and prejudice against the defendants and each of them."
That bill of exception was approved by the court with the following explanation:
"The said W. A. Shields did not say to the jury that there were thirteen lawyers present and actively representing the defendants, but said to the jury that the names of thirteen lawyers were signed to the requested instructions. No objection was made to any of the matters complained of in the foregoing bill during the argument, nor at any time until after the jury had returned their verdict, and the first time the matters complained of in this bill of exception were ever called to the attention of the court was when the amended motions for a new trial were presented to the court."
Another bill of exception in the record shows the following proceedings:
"Be it remembered that upon the trial of the above numbered and entitled cause, while this case was being tried before the jury, Mr. W. A. Shields, one of the plaintiff's attorneys, turned to the court stenographer, who was reporting said case, and requested him to turn to the testimony of the fireman who was operating the said train at the time of the accident which resulted in the death of the deceased R. L. Emberlin, said testimony having been given by the fireman in the former trial of this case, and the said W. A. Shields requested said court reporter to read from his notes certain portions of the testimony of said fireman to the jury, all of which actions on the part of the said W A. Shields the court permitted.
"And be it remembered further that the said fireman was not called as a witness, and did not testify as a witness upon the trial of this case at the present trial. And the said defendants and each of them duly excepted to the actions and conduct of the said W. A. Shields in having the reporter turn to the testimony of the fireman given at a former trial of the case and attempting to introduce said testimony in evidence through the lips of the stenographer from his notes written during a former trial of the case, it not being shown that the fireman was dead; and the defendants duly excepted to the action of the court in permitting the said W. A. Shields to do each and all of the acts herein above set forth, and in the court permitting said W. A. Shields to endeavor to introduce said testimony of the fireman, given at a former trial, in evidence by having the court stenographer read same from his notes made at a former trial of the case, for the reason that said testimony was not admissible in evidence, it not being shown that the fireman was dead, and said actions and conduct on the part of the said W. A. Shields and the court were highly prejudicial to the defendants and reasonably calculated to cause the jury to believe that the testimony of the said fireman was against said defendants," etc.
That bill of exception was approved by the court with the following explanation:
"The court did not grant the said W. A. Shields permission to offer to introduce the evidence of the fireman given on the former trial, but the said W. A. Shields in the usual way did offer to introduce certain portions of said evidence, whereupon objection was made by the defendant, and the said W. A. Shields did not further urge the admission of said evidence, and none of the evidence given by the fireman on the former trial was introduced on the trial of this case."
In Willis Bros. v. McNeill, 57 Tex. 465, it is said:
"The eighth assigned error is that `the court erred in permitting defendant's attorney in the concluding argument to discuss the wealth of the plaintiffs, and to insist that the wealthier the plaintiffs were the greater the amount of damages that should be assessed against them, as shown by bill of exception. No. 8.'
"The evidence submitted on the trial of a cause should be confined to the issues made by the pleadings, and it is the sworn duty of the jury to try the case according to the law given them in charge by the court and the evidence submitted. The rules for the government of the district court prescribe that `counsel shall be required to confine the argument strictly to the evidence and to the argument of opposing counsel;' and that `the court will not be required to wait for objections to be made when the rules as to argument are violated, but should they not be noticed and corrected by the court, opposing counsel may ask leave of the court to rise and present his point of objection.' Rules 39 and 41.
"It is further provided (rule 121), that any supposed violation of the rules to the prejudice of a party may be reserved by bill of exceptions, presented as a ground for a new trial, and assigned as error by the party who may have conceived himself aggrieved by such supposed violation.
"Under these rules the duty devolves affirmatively, first, upon counsel to confine the argument strictly to the evidence and to the argument of opposing counsel; second, upon the court, on its own motion, to confine counsel to this line of argument. If both the counsel who is making the argument and the court should fail in the discharge of this duty, then the rules give to opposing counsel the privilege, but does not make it his duty, to then present his point of objection. This discretion given to counsel, as to whether he will make the objection at the time, was doubtless based upon the well known embarrassments and often prejudice which generally attend the interruption of the argument of one counsel by another; and was intended to place that as a duty where it properly belongs — upon the presiding judge.
"In announcing as a rule of practice that which was subsequently incorporated into the present rules of court above quoted, it is said by the late learned chief justice of this court, in Thompson v. The State, that `zeal in behalf of their clients, or desire for success, should never induce counsel in civil cases, much less *Page 995 those representing the state in criminal cases, to permit themselves to endeavor to obtain a verdict by arguments based upon other than the facts in the case and the conclusions legitimately deducible from the law applicable to them.' It is further said that such practice is of sufficiently grave importance and so highly objectionable as to require the decided condemnation of the court, 43 Tex. 274. Whether counsel under such circumstances remain silent or object, may be alike prejudicial to his cause. Silence may be construed into acquiescence, objection may call forth a damaging repartee.
"In Berry v. The State, the distinguished Judge Lumpkin, in commenting upon a similar question and upon the duty of the court to check the argument of counsel, says: `That the practice complained of is highly reprehensible, no one can doubt. It ought in every instance to be promptly repressed. For counsel to undertake by a side wind to get that in proof which is merely conjecture, and thus to work a prejudice in the mind of the jury, cannot be tolerated. Nor ought the presiding judge to wait until he is called on to interpose. For it is usually better to trust to the discrimination of the jury as to what is and what is not in evidence, then for the opposite counsel to move in the matter. For what practitioner has not regretted his untoward interference, when the counsel thus interrupted resumes, "Yes, gentlemen; I have touched a tender spot, the galled jade will wince; you see where the shoe pinches."' 10 Ga. 522.
"This question was also elaborately discussed, and the practice very gravely condemned by our Court of Appeals, in Hatch v. The State, 8 Ct. [Tex.] App. 416 [34 Am.Rep. 751]. The argument of counsel, complained of in the present case, did not legitimately belong to any proper issue in the case; was not based upon any evidence adduced, or which could have been properly adduced on the trial, and was calculated to inflame the passions and excite the prejudices of the jury. That it did so inflame and excite them may well be presumed from the very large verdict which was returned."
The decision in Willis Bros. v. McNeill to the effect that improper remarks of counsel in argument to a jury are available on appeal, notwithstanding the failure of the party prejudiced to object at the time the argument was made, was followed by the Court of Appeals in the case of Home Life Accident Co. v. Jordan, 231 S.W. 802, and in that case a judgment was reversed for improper argument, although no objection was presented to it at the time it was made. Many decisions might be cited in which judgments were reversed for improper argument made to juries, such as Dillingham v. Scales, 78 Tex. 207, 14 S.W. 566; Tex. Cent. Ry. Co. v. Parker, 33 Tex. Civ. App. 514, 77 S.W. 42; Miller v. Burgess (Tex.Civ.App.) 130 S.W. 1174, and other decisions there cited; Houston Ice Brewing Co. v. Harlan (Tex.Civ.App.) 212 S.W. 779, and decisions there cited; Kirby Lumber Co. v. Youngblood (Tex.Civ.App.)192 S.W. 1106, and decisions there cited.
In Dillingham v. Scales, 78 Tex. 205, 14 S.W. 566, cited above, the judgment was reversed because of improper argument to the jury made by plaintiff's counsel, which was withdrawn when defendant's counsel objected thereto, and in that case our Supreme Court said:
"On account of there being no exact method of estimating the amount of such damage provided by the law, we do not feel authorized to set aside every verdict that is for a greater amount than we would have given as an original question, or when we can not account for it from the evidence when the question has been properly submitted to the jury. But in all such cases there must be no ground to believe that the verdict has been influenced from any improper cause. It must appear that the cause has been fairly submitted to the jury upon the law and evidence, and there must be no ground for charging that the verdict has been influenced by extraneous considerations or by passion, partiality, or prejudice. The verdict is larger than we can account for upon any view of the evidence. The remarks of counsel excepted to were not justified or called for by anything legitimately belonging to the case. We cannot say that they did not improperly prejudice the jury. We cannot say that they exercised no influence on the jury. If they exercised any it was an improper one. The fact that we have no means, and that the jury have none, of arriving at the exact amount of damages in such cases emphasizes the importance of guarding the minds of the jury from all misleading and improper influences and appeals. The judgment is reversed and * * * remanded."
In Southern Traction Co. v. Wilson, 254 S.W. 1104, by the Commission of Appeals, a judgment was reversed, and the cause remanded to the trial court, for misconduct of the jury; the following appearing in the syllabus of the opinion in that case:
"If, from the evidence taken by the trial judge on the hearing of a motion for new trial, on the ground of misconduct of the jury, it is reasonably doubtful as to whether a juror was influenced to any extent in arriving at his verdict by discussion of improper evidence in the jury room, the verdict must be set aside."
To the same effect are the decisions in the following cases: Hines v. Parry, 238 S.W. 886; Payne v. Harris, 241 S.W. 1008, by the Commission of Appeals.
The following is taken from the syllabus of Lamar v. Panhandle S. F. Ry. Co. (Tex.Com.App.) 248 S.W. 34:
"Where there is doubt as to whether error was harmful, the doubt should be resolved in favor of the one against whom the error was committed."
In American Express Co. v. Chandler, 231 S.W. 1081, by the Commission of Appeals, a judgment was reversed for remarks by the trial judge during the trial, which were in *Page 996 effect a comment on the weight of the evidence, notwithstanding the fact that in his charge to the jury the judge admitted his error and withdrew the statement; the Commission of Appeals holding that it could not reach the conclusion that the error was harmless.
In Miller v. Burgess, 136 S.W. 1174, this court reversed a judgment for improper argument of counsel, and, speaking through Chief Justice Conner, had this to say:
"As has been often determined, inflammatory argument, unsupported by any evidence in the record, constitutes error, where it tends to affect the issue of liability, as well as when its tendency is to augment the amount of damages. See C., R. I. T. Ry. v. Musick,33 Tex. Civ. App. 177, 76 S.W. 219; Electric Co. v. Black,40 Tex. Civ. App. 415, 89 S.W. 1087; H. E. W. T. Ry. Co. v. McCarty, 40 Tex. Civ. App. 364, 89 S.W. 807; Ft. W. Belt Ry. Co. v. Johnson [59 Tex. Civ. App. 105] 125 S.W. 387. In the present case we cannot assume that the purpose of appellee's counsel in making the argument was any other than to thus affect the issue of liability, for, as is now contended, no other issue was left for the determination of the jury. For the error discussed, we think the judgment must be reversed, and the cause remanded."
In Kirby Lumber Co. v. Youngblood (Tex.Civ.App.) 192 S.W. 1106, cited above, the following was said in sustaining an assignment of error to improper argument to the jury:
"It is clear from the statements made by plaintiff's counsel that he could have no other object in view than to arouse the passion and prejudice of the jury. The argument was not based upon any evidence adduced upon the trial. It is true the trial judge admonished said attorney `that he should in his argument keep within the record, and that the argument was improper'; but when the seeds of passion and prejudice are sown and fall in fallow ground, it is difficult, indeed, to destroy its effect, even by the most careful admonition and painstaking instructions; and when counsel, either in their argument to the jury or during the trial, in the presence of the jury, go outside of the record, and indulge in remarks that are clearly intended to arouse the passion or prejudice of the jury, and likely to influence them, such conduct not only authorizes but requires the trial court to set aside the verdict of the jury, and this should be done, even though the court may have instructed the jury to disregard such argument. Rules 39 and 41, District Court (142 S.W. xx); Railway Co. v. Jarrell, 60 Tex. 270; Texarkana Ft. Smith Ry. Co. v. Terrell [Tex. Civ. App.] 172 S.W. 742; Moss v. Sanger Bros.,75 Tex. 323, 12 S.W. 619."
Without undertaking to determine whether any one of the bills of exception referred to above, considered separately and apart from the others, would of itself show reversible error, we have, after mature consideration, concluded that those four bills of exception, considered as a whole, show improper and unwarranted proceedings, which require a reversal of the judgment.
The argument complained of brought to the minds of the jurors matters which were not proper for them to consider, because not evidence in the case, and evidently was made for the purpose of influencing the verdict in plaintiff's favor, and the same was reasonably calculated to have that effect. Likewise the request of plaintiff's counsel, addressed to the court stenographer in the presence of the jury, to read to them the testimony of the fireman given upon a former trial, but who was not introduced as a witness on the last trial, with no showing that he was dead, and no other predicate laid for the introduction of that evidence, was plainly calculated to influence the jury in plaintiff's favor, and evidently the offer to introduce it was made for that purpose. Furthermore, the fact that the evidence offered was so clearly inadmissible in connection with the further fact that counsel abandoned further effort to introduce it upon objection made thereto, without waiting for a ruling upon the objection, indicates that he probably offered it with no expectation that it would be admitted. The offer was tantamount to a suggestion by innuendo that in the opinion of counsel offering it the fireman's evidence on the former trial tended to support the cause of action alleged by the plaintiff, and the force of that implied suggestion was probably heightened by the objection to that evidence made by defendant's counsel, which objection they undoubtedly had the legal right to make.
As announced in decisions cited above, if the action of plaintiff's counsel, shown in the bills of exception referred to, was improper and reasonably calculated to excite bias in plaintiff's favor or prejudice against the defendant, reversible error is shown, unless it clearly appears that the same resulted in no harm to the defendants.
Whether such action on the part of plaintiff's counsel did in fact operate upon the minds of the jurors prejudicially to the defendant, we cannot know with certainty, but we believe it probably had that effect, in view of the amount of damages allowed, which seems to us to be excessive under all the evidence bearing upon that issue, which we shall not undertake to discuss at length, and in view of the further fact that, notwithstanding their findings that the deceased neither looked nor listened for the approach of the train immediately before he was struck, the jury further found that he was not guilty of contributory negligence in stepping upon the track in front of the slowly approaching engine, which it conclusively appears was plainly visible to him immediately before he did so. Railway Co. v. Johnson (Tex.Civ.App.) 224 S.W. 277. If they were improperly influenced to make that *Page 997 finding, it is probable that their findings on other issues against the defendants were influenced likewise. At all events we are unable to conclude that the errors discussed did not influence the jury to appellants' injury, and that those errors were therefore harmless.
For the errors noted, the judgment of the trial court in favor of appellee against appellants Wichita Falls, Ranger Fort Worth Railway Company and the Fort Worth Rio Grande Railway Company is reversed, and the cause is remanded for a new trial as to those parties. The judgment in favor of the St. Louis, San Francisco Texas Railway Company, of which no complaint is made on this trial, is left undisturbed.
BUCK, J., not sitting.