Bump v. Delaware, Lackawanna & Western Railroad

Howard, J.: The books abound with instances where verdicts have been set aside because of improper remarks of counsel, and they abound, likewise, with instances where the courts have refused to disturb verdicts because of such remarks. Therefore, the citation of precedents signifies but little. In the case at bar the trial judge promptly rebuked the counsel for his improper language and in the charge he emphatically and distinctly instructed the jury to disregard the remarks, warning them that the language was intended to excite their prejudice. Generally where the trial court has promptly rebuked counsel and has directed the jury to disregard such remarks the appellate courts have refused to molest the verdict. This policy has been proclaimed by the unanimous opinion of this court in the recent case of Kuntz v. Howard (143 App. Div. 830). In the case cited in the dissenting opinion herein (Horton v. Terry, 126 App. Div. 479) it does not appear that the trial judge in any manner corrected the abuse either by instant rebuke to counsel or by sufficient instructions in the charge. The language of counsel in this case was improper, unprovoked, ill-considered. What he said was apparently studied, deliberate and premeditated. It was not calculated, however, as I view it, so much to inflame the passions and excite the prejudice as it was to give, what counsel considered, an appropriate touch and finish to the oration. But whatever may have been the design of counsel in making the remarks, they were out of place, they were illegitimate in their nature, they were no part of an honest argument. Such language should not go unnoticed by the courts; it deserves rebuke. But because [104] it seems necessary to reprimand counsel for his indiscretion the occurrence should not be developed into an excuse either to reverse the verdict or take any part of it away from the plaintiff — a plaintiff who acted a part so manly and fair all through the trial. It is not well to exaggerate this incident beyond its natural proportions. We must assume that jurors have common sense; and it does not seem possible to me that all of those twelve men sitting in the box could have been warped out of their course by a circumstance so insignificant and short. It is not reasonable to suppose that men fit to sit as jurors can be swerved and biased away from justice, as children and savages might be, by every little improper statement made by counsel in summing up; particularly this is so where the trial court denounces the counsel’s language and cautions the jury against it. To assume that this ridiculous suggestion concerning the imaginary Phoebe Snow could have been taken seriously by the jury or have been a deciding factor with thém, places the lowest possible estimate on the mental capacity of jurors. To force this plaintiff to consent to a reduction of the verdict or to subject each of the litigants and the county to the expense of a new trial because of this absurd suggestion, would be a determination which, I fear, would not be recognized as the product of judicial common sense, nor stand the test of public scrutiny. If the defendant was negligent at all (and this is the question which has troubled me most) the assessment of damages was not extravagant. The plaintiff has only lost a leg, but that is much. He must go through life handicapped and lame. He was a bright, active, promising, healthy young man; now he is a cripple and a wreck. His physical symmetry in which, like all young men, he exulted, is destroyed. He can no longer leap and run; he must hobble and limp. To him this mutilation of his body is a frightful calamity; it annihilates all the glory' of youth. The estimate of the jury as to the damages was not unreasonable. The judgment and order should be affirmed, with costs. Woodward, J., concurred; Lyon, J., concurred in result; Smith, P. J., and Kellogg, J., dissented, the latter in opinion.