East Tennessee, Virginia & Georgia Railroad v. Bayliss

STONE, <1. In the concluding argument, counsel for the appellee, speaking of a witness who had testified for the defendant, said : “ Engineers on railroads, like this engineer, have to emigrate if they do not conform to the wishes of their employers, and testify as their employers’ interests require. They testify with a halter around their necks.” There is no question that an agent or employee in any case is supposed to be favorably inclined to the interests and wishes of his employer. This is natural and human, though not universal. And this bias, if bias it be, is all the more natural, if the agent be testifying to acts of his own performance. But, like all other witnesses, his testimony should be weighed fairly, impartially weighed ; weighed by his intelligence, his manner, the consistency of his story, its probability or improbability, and all those other tests, by which a narration convinces us, or fails to convince us. The juror is in search of truth, and should be blind to consequences. When he follows his convictions implicitly, he vindicates the jury system, and his fitness for its duties. Did counsel go beyond the boundary of legitimate argument in this cause? Speaking of the rule in cases like this, we, in Cross v. State, 68 Ala. 476, said: “ The statement ” of counsel, to authorize reversal, “ must be made as of fact; the fact stated must be-unsupported by any evidence, must be pertinent to the issue,, or its natural tendency must be to influence the finding of the [471] jury, or the case is not brought within the influence of the rule.” In the later case of Wolffe v. Minnis, 74 Ala. 386, the language of counsel, to which exception was reserved, was, that his client was a “ large-hearted, great-souled, confiding, trusting man.” There was no testimony to support this assertion, nor was there any thing in evidence from which it could be inferred. The design and tendency of the language, evidently were to induce the jury to look favorably and charitably on any thing the client may have done, or, perhaps, testified to. Referring to these strong adjectives, we said, when they are used as attributes of character, they are facts, and are provable as other traits of character are, when they become a material subject of inquiry, if they ever can become so. "We reversed the case, because the court did not instruct the jury to disregard such unauthorized statements, when thereto requested. If what was objected to in this case had been stated as an inference or opinion, based on the witness’ connection with the railroad, and with the act complained of as negligent, counsel would have kept within legitimate bounds. It was not so stated. It was stated as fact. Its meaning is, that there is a rule or custom with railroad companies to discharge their employees, if they do not testify “ as their employers’ interests require.” If this be so, then, indeed, do “ they testify with halters round their necks.” Such terror, duress, or restraint, would be well calculated to exert its influence on many minds, and would materially impair the weight of testimony thus given. See, also, Motes v. Bates, 74 Ala. 374. The record before us informs us it contains all the evidence, and there is nothing shown to justify the line of argument pursued. It presented the common case of the officers in charge of the train being the only eye-witnesses of the collision and injury. Such, of necessity, is generally the case. It would rarely happen that any pei’son, other than the engineer and fireman, could have actual, personal knowledge of injury done to stock, and the circumstances attending such injury. The onus being on the railroad to disprove negligence, after the injury is shown, and the only possible means of making such exculpatory proof being through its own employees, its condition is deplorable in the last degree, if its only attainable witnesses are necessarily to be disbelieved, for no other reason than that they' are employees of the railroad. The language copied above should have been ruled out, should have been declared improper, and the jury should have been cautioned against allowing it to have any influence with them. We go further. When counsel trespass on the domain of unproven facts, the presiding judge should promptly set aside any verdict they may recover, unless he is clearly and affirmatively [472] convinced the verdict is right, and would have been the same) in the absence of such unauthorized argument. The law, by imposing on railroads the duty and burden of disproving all acts of negligence, when they are shown to have inflicted an injury, is certainly exacting enough, without loading them down with additional burdens, that are neither proved nor provable. Corporations, under the same measure of proof, are entitled to the same verdict and judgment as individuals are entitled to. Less than this is not a verdict according to the evidence. But in inquiries, such as those presented by this record, a second question of equal importance comes up. Did the alleged omission of duty cause the injury complained of ? When injury is shown, and some acts of omitted duty are traced to the railroad’s employees, the railroad is not necessarily liable. If the omitted duty did not cause, or, in any way, contribute to the injury, its omission confers no right of recovery. Nor is it necessary that railroad employees shall attempt the impossible. If, without fault of such employees, a danger is not, and can not be discovered, until all appliances known to the best regulated railroad motive power are clearly powerless to avert, or mitigate the injury, then a failure to apply such useless agencies imposes no liability. And particularly would this be the case, if, by attempting the impossible, the chances of another or greater peril would be increased.—Code of 1876, §§ 1699, 1700 ; M. & C. R. R. Co. v. Bibb, 37 Ala. 699 ; Ala. Gt. So. R. R. Co. v. McAlpine, [ante. p. 113]; Steele v. Char., Col. & Aug. R. R. Co., 11 S. C. 589. That part of the general charge which was copied from S. & N. R. R. Co. v. Williams, 65 Ala. 74, is not erroneous. It does not, and was not intended to mean, that the engineer shall keep his eye steadily on the track before him, to the neglect of his other equally imperative duties. The movements of the eye are quick and rapid. The engineer, while attending to the other wants of his train, must be constantly on the lookout for obstructions ; and he meets this requirement, when he bestows on the service that steady, regular care and watchfulness, which his other duties allow a very careful and prudent person to give to it. See this case when formerly here, 72 Ala. 20. For the single error, the judgment of the circuit court is reversed, and the cause remanded.