{
  "id": 8722060,
  "name": "Missouri Pacific Railroad Company v. Foreman",
  "name_abbreviation": "Missouri Pacific Railroad v. Foreman",
  "decision_date": "1937-07-12",
  "docket_number": "4-4718",
  "first_page": "490",
  "last_page": "493",
  "citations": [
    {
      "type": "official",
      "cite": "194 Ark. 490"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "188 S. W. 838",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "125 Ark. 314",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1553187
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/125/0314-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 353,
    "char_count": 5739,
    "ocr_confidence": 0.503,
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      "percentile": 0.5541981405093501
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    "sha256": "049db398febaee308318dd8faac67bd30f4b5d4ab393567f723d84cb207848a1",
    "simhash": "1:a2387ff48e678ab0",
    "word_count": 1014
  },
  "last_updated": "2023-07-14T19:32:46.346325+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Humphreys and Mehaeey, JJ., dissent."
    ],
    "parties": [
      "Missouri Pacific Railroad Company v. Foreman."
    ],
    "opinions": [
      {
        "text": "Smith, J.\nAppellee\u2019s intestate was killed at a crossing by one of appellant\u2019s passenger trains. The usual questions arising in such cases are present in this case, and are discussed in the briefs of opposing counsel. We find no error in the record except in the particulars hereinafter stated.\nThere was a sharp conflict in the testimony as to whether the whistle was blown or the bell rung\u2019 as the train approached the crossing, and in discussing the character of the crossing Mr. Tackett, of counsel for appellee, in his argument before the jury, said: \u201cI have been over that crossing\u2019 many times, and lots of you men have, and it is a death trap, and there is not another one like it in the State.\u201d Upon objection being made to the argument the court said: \u201cMr. Tackett, you will have to confine your argument to the testimony.\u201d Further along in his argument counsel said: \u201cIf the jury returns a verdict in favor of the plaintiff there will not be a meal missed by an official of the Missouri Pacific Railroad Company.\u201d Upon objection being made to the argument counsel said: \u201cI will withdraw any remarks I have made if they were not permissible.\u201d Counsel for defendant said: \u201cI will ask the court to charg\u2019e the jury to disregard it.\u201d Whereupon the court said: \u201cI think that is a legal deduction in the first \u25a0place; in the next place I will charge the jury they will consider the testimony.\u201d Exceptions were duly saved in both instances.\nWe think the argument in each instance was erroneous and prejudicial, and that the ruling of the court did not' operate to remove the prejudice.\nIn the first instance the statement of counsel was an affirmative and very emphatic declaration of a fact upon one of the controverted issues in the case based upon his personal knowledge. It was in the nature of testimony, and the court did not direct the jury that it could not he so considered; on the contrary, the ruling was that counsel would have to confine his argument to the testimony. But the jury was not told that counsel\u2019s statement was not testimony, as should have been done.\nThe second statement of counsel was not withdrawn, nor was the jury told that it was improper. Counsel did propose to withdraw the remarks, but upon the condition only that they \u201cwere not permissible,\u201d but the court did not so hold; on th\u2018e contrary, the argument was apparently approved by the court. Such is the effect of \u2018the ruling that \u201cI think that is a legal deduction in the first place,\u201d and that holding was not quali.fied by saying \u201cI will charge the jury they will consider the testimony.\u201d If, in fact, this was a \u201clegal deduction,\u201d as the court stated it to be, it was not improper for the jury to consider it. The fair \u2014 if not the necessary \u2014 \u201cdeduction\u201d is that a judgment in the plaintiff\u2019s favor in the case on trial, in comparison with the total operating costs of the railroad, would be so inconsiderable that \u201cthere will not be a meal missed by an official of the Missouri Pacific Railroad Company.\u201d The ability of the railroad company to respond in damages and to pay the judgment was not a proper matter for the jury to consider. The only questions which should have been submitted to and decided by the jury were (a) that of the liability of the railroad company for intestate\u2019s death, and (b) if liaible, the proper compensation to be awarded; and these questions \u2014 both of them \u2014 should have been decided without reference to appellant\u2019s ability to. pay, there being no claim for punitive damages. Many of our cases are cited in the briefs upon the questions (a) whether or not an argument was improper and erroneous, and (b) if so, whether the prejudice thereof had been or could be removed. We do not review these cases in this opinion, but applying the principles which all of them have announced,. we state our conclusion to be that both arguments were erroneous, and, if this be true, the prejudice' thereof was not removed by the rulings of the court.\nIn the case of St. Louis, Iron Mountain & Southern Ry. Co. v. Hairston, 125 Ark. 314, 188 S. W. 838, we quoted with approval from the chapter on \u201cArgument of Counsel\u201d in 2 R. C. L. 425, the following statement of the law: \u201c \u2018It is the unquestionable privilege of counsel to indulge in all fair argument in favor of the contention of his client. But he is outside of his duty and his right when he appeals to prejudice irrelevant in the case. Properly, prejudice has no more sanction at the bar than on the bench. An advocate may make himself the alter ego of his client, and indulge in prejudice in his favor. He may even share his client\u2019s prejudices against his adversary, as far as they rest on the facts in his case. But he has neither duty nor right to appeal to prejudices, just or unjust, against his adversary, dehors the very case he has to try. The fullest freedom of speech within the duty of his profession should be accorded to counsel, but it is license, not freedom of speech, to travel out of the record, basing- his argument on facts not appearing, and appealing to prejudices irrelevant to the case and outside of the proof. * * * Where the admonition of the court does not prove sufficient to prevent improper and dangerous appeals to the prejudices of jurors, it becomes necessary rigidly to enforce the general rule that requires a reversal whenever the error is raised by a proper exception.\u2019 \u201d\nHere, proper exceptions were saved, and for the errors indicated the judgment'will be reversed and the cause remanded for a new trial. ;\nHumphreys and Mehaeey, JJ., dissent.",
        "type": "majority",
        "author": "Smith, J."
      }
    ],
    "attorneys": [
      "R. E. Wiley and Richard M. Ryan, for appellant.",
      "Farmer Tackett and Tom W. Campbell, for appellee."
    ],
    "corrections": "",
    "head_matter": "Missouri Pacific Railroad Company v. Foreman.\n4-4718\nOpinion delivered July 12, 1937.\nR. E. Wiley and Richard M. Ryan, for appellant.\nFarmer Tackett and Tom W. Campbell, for appellee."
  },
  "file_name": "0490-01",
  "first_page_order": 508,
  "last_page_order": 511
}