Puett v. Railroad

Walker, J., after stating the case: The right of the plaintiffs to recover was not seriously questioned, provided the jury had found the facts to be as alleged in the complaint. The court charged the jury upon the theory that there might be such a recovery if they found the facts to be as the witnesses testified they were. The right of a passenger to recover against a carrier for its neglect to carry him to his destination, rests not only upon contract, but the duty so to carry him is imposed by law and for a breach of it he may recover in tort and the liability then is, of course, independent of the contract. Fetter on Carriers, p. 11, sec. 5, and notes, and p. 1337, sec. 535; Hansley v. Railroad, 115 N. C., 602; Code, sec. 1963; Revisal, sec: 2611. We are not now referring to the measure of damages, for that question is not before us. In the Hansley case, the rule as to compensatory damages in *335 suck cases seems to have been agreed upon by all tke judges, tkongk tkere was a division of opinion among tkem as to exemplary damages. We will not even intimate wketker tke plaintiff is entitled to recover punitive damages in tkis case, if ke is entitled to recover at all, but leave tkat question open for decision wken it is presented. We tkink tkat His Honor erred in interrupting and stopping counsel in kis argument. Tke comment ke was making upon tke declaration of Pope seems to us to kave been clearly witkin kis rigkt. Wkat Pope said, at tke time tke plaintiffs were in tke passenger coack, was a part of tke res gestae. It occurred at tke very time tkat tke plaintiffs left tke car, and tended to explain wky 'tkey left and to skow tkat tkey kad good cause for leaving, in tkat tkey kad a reasonable apprehension of danger if tkey remained. It also tended to corroborate tke plaintiffs as witnesses. It was not merely a statement of Pope as to wkat kad occurred, wkick would be hearsay, but a declaration made at tke time tke 'drunken engineer left with kis engine, ke having made tke threat to return and “run through tke train.” It was an integral part of tke whole transaction, as muck so as the conduct of tke engineer and tke act of tke plaintiffs, and was required to complete tke story of wkat kad been done. Being thus competent, material and relevant, tkere can be no doubt of tke rigkt of counsel to make proper comment upon it in kis address to tke jury. This was all tkat ke was doing wken admonished by tke judge to stop, wkick he did, as ke should kave done,, in submission to tke intimation of tke court. But kis client was thereby prejudiced, and prevented, through kis chosen counsel, from developing kis case before tke jury. Tke judge has a large discretion in controlling and directing tke argument of counsel (State v. Caveness, 78 N. C., 484), but this does not include tke rigkt to deprive a litigant of tke benefit of kis counsel’s argument wken it is confined witkin proper bounds and is addressed to tke material facts of. the 'case. *336 State v. Miller, 75 N. C., 73. What is here said is subject, however, to the restrictions imposed by the Act of 1903, ch. 433; Revisal, sec. 216. The right to argue the whole case has been expressly conferred by statute. Rev. Code, ch. 31; see. 57, par. 15; Code, ch. 4, sec. 30; Revisal, sec. 216. The history of this legislation is well known to the bench and bar. State v. Miller, supra. The reason of the court for stopping counsel is not given. 'We assume, and we think not unreasonably, that the learned judge who presided at the trial thought the comment improper, as the declaration of Pope was immaterial. Entertaining this opinion, it was proper to interfere as he did. But we think the declaration was material and a proper subject of comment. We do not see why the testimony of the witness, Post Clarke, which was excluded by the court, was not competent and relevant. It was ruled out, we are informed, because it was supposed to be too uncertain as to the source of danger. The witness stated, it is true, in the same connection, that there were negroes on the train, but it does, not appear that he intended to imply that the conductor referred to them as dangerous. He was merely stating the fact of their 'presence without regard to its relation with what the conductor had said. Nor does it appear that the negroes were intoxicated or misbehaving themselves. The evidence fails to disclose anything to which the conductor could have referred, except the drunken condition of the engineer and fireman. He may not have intended to refer to that, but in the absence of proof of any other source of danger, what-he said is competent as some evidence to be considered by the jury, tending to show that he knew of their condition before he left Lenoir. What he really did mean may be explained at the next trial. In unduly restraining the argument of counsel and in excluding competent evidence as herein stated, there was error in law. New Trial.