I did not participate in the decision in this case on original hearing, but I am now convinced that the judgment below should not be reversed, either because the overwhelming weight of the testimony showed contributory negligence on the part of the deceased, or because of claimed improper argument on the part of counsel for plaintiff.
In Emberlin et al. v. Wichita Falls, R. F. W. Ry. Co. et al., 267 S.W. 463, the Commission of Appeals said:
"From the evidence can it be said that reasonable minds could reach no conclusion other than that deceased was guilty of contributory negligence in failing to look or listen for the approaching train before attempting to *Page 1001 cross the track? There is evidence that if he had looked he could not have seen the engine, and if he had listened, it coasted in so noiselessly that he would not have heard it. We think the jury was warranted in concluding from the evidence that, though the deceased neither looked nor listened, he was not negligent in attempting to cross the track. The evidence would warrant a finding that, had the bell been ringing, or the usual sounds made by the train entering the station, the deceased would have been warned of its approach, and would not have attempted to step on the track. Reasonable minds might differ as to whether, under this evidence, an ordinarily prudent person would have relied upon the usual noise made by a locomotive engine in approaching the station to have called attention to its approach."
This decision in effect holds that the question of whether deceased was guilty of contributory negligence was one for the jury, and that their verdict should not be disturbed upon that issue.
As to the claimed improper argument, the writer does not believe that such argument was reasonably calculated to inflame the minds of the jury so as to cause them to render an improper verdict. In the argument of W. A. Shields, of counsel for plaintiff, first quoted in the majority opinion on original hearing, the writer doubts if the words used by Mr. Shields were of a nature to require a reversal in any event, but especially is this true in view of the court's instructions to not consider the argument and the failure of the defendant to present a written request to the court to instruct the jury not to consider such argument.
In the argument complained of, shown in the original opinion, where the counsel for plaintiff urged the jury not to arrive at their verdict by lot, and not to discuss the case with each other or with any other person outside of the jury room, etc., the writer does not see any impropriety in the argument. In the argument he was simply trying to instruct the jury not to do those things which the courts have held constitute reversible error. It is true it is the province of the trial court to instruct the jury with reference to their duty, but the writer does not see any reversible error in counsel attempting to do so in the language here shown especially as the argument complained of was not called to the attention of the court and no objection to the same was made to the argument, 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. Neither can the writer see any harmful effect that might have been produced on the minds of the jury by the evidently jocular remark of counsel for plaintiff that thirteen lawyers were representing the defendants in the case — more lawyers than there were jurors on the trial. The court made its qualification to this bill of exceptions to this remark that the names of thirteen lawyers were signed to the requested instructions, and not that thirteen were actively representing the defendants in the trial. No objection was made to this argument until the amended motions for new trial were presented to the court. There is nothing in either of the arguments showing a purpose on the part of counsel to induce the jury to return a verdict for excessive damages, but the tenor of the argument was that the jury should compensate her for the damages she had sustained. Some liberality should be exercised by the courts in allowing counsel a reasonable freedom in the discussion of the facts in a case. It may be true that in some of the arguments, deductions which might reasonably be drawn therefrom are not consistent with the facts in evidence, but it seems to the writer that some reliance should be allowed on the sound common sense of the juries, and their ability to discard illogical arguments, and to sift out the truth from the evidence, guided by the instructions of the court.
Nor is the writer inclined to the view that any reversible error is shown by the action of W. A. Shields, counsel for plaintiff, offering to introduce certain portions of the testimony of the fireman who was operating the train at the time of the accident which resulted in the death of the deceased. Said testimony had been given by the fireman on the former trial of the case, and the court qualified the bill of exceptions, as shown in the original opinion by the statement that "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." Oftentimes on the same trial testimony given on a former trial is introduced from the stenographic report of the case. The record does not disclose upon whose behalf the fireman testified on the former trial, but presumably on behalf of the defendant. He was an employee of the defendant, and vitally connected with the circumstances of the accident. In the bill of exceptions, no indication is shown as to the purport of the testimony given by this witness on the former trial, and no other circumstances shown by which the tender of the testimony could reasonably have had a harmful effect on the minds of the jury. The writer thinks that the trial court, who was present, and knew all of the facts connected with the tender of the testimony, is better able to decide whether such tender constituted reversible error or not than we are.
Owing to the fact that this term is *Page 1002 drawing to a close, and we will be very busy attending to other matters during the remaining days of the term, the writer has been very brief in the discussion of the grounds of his dissent. Ordinarily I defer to the conclusions of my learned associates in cases drawn by them and to which they have given special study. I appreciate the exhaustive study which Associate Justice DUNKLIN has given this case, both on original hearing and on motion for rehearing, and I have no fault to find with the opinions cited by him in support of his conclusions. The main difference between us is as to whether the arguments used by counsel for plaintiff below, and the action of said counsel in tendering this testimony, constitute reversible error. He thinks it does, in which Chief Justice CONNER agrees; I do not think so.