Keefer v. Mellott

Per Curiam, In the late case of Cook v. Electric Motor Co., 225 Pa. 91, the court said: “It has been frequently held that in this class of cases no irregularities should be permitted which tend to inflame the prejudices of the jury against the defendant, and in a flagrant -ease this court will reverse for such error. But so much depends on the im [473] mediate circumstances and what may be called the atmosphere of the trial that a large discretion must be allowed to the trial judge. In the present case the action of the judge in cautioning the jury was so prompt and the withdrawal of the improper remark by counsel was so frank and unreserved that we cannot say that the judge did not use wise discretion in refusing to withdraw a juror.” These remarks are peculiarly applicable to the present case when all that occurred at the time the exception was taken is considered. It was admitted at bar that immediately upon objection being made, counsel for the appellee promptly apologized and stated in the presence of the jury that he ought not to have made the remarks objected to. It appears also in the bill of exceptions, as noted in the official report of the trial, that the court at once admonished counsel not to mention what was not in the evidence, and at the same time cautioned the jury in the following explicit language: “Gentlemen of the jury, you will not be influenced by sympathy or consideration as between the men at all. Let him argue on the testimony of the case. That is an error. You will not consider that at all.” The verdict was small, and upon consideration of those matters which do not appear in the assignment ofi error in connection with what does appear, and having due regard to the consideration that in the determination of such questions something must be left to the sound discretion of the trial judge, we are unable to say that reversible error was committed in overruling the defendant’s motion. The judgment is affirmed.