#### LONNIE G. CONN v. SEABOARD AIR LINE RAILWAY COMPANY and C. A. RICE.

(Filed 27 June, 1931.)

Trial C a — Counsel may not read dissenting opinion in argument to jury-over objection of adverse party.

It is not permissible for counsel, in bis argument to tbe jury, to read a dissenting opinion by a Justice of tlie Supreme Court as tbe law of the case over tbe defendant’s objection, and where this has been done a new trial will be awarded on the defendant’s exception thereto, and the fact that the trial court, upon objection, made a general observation to the effect that the jury would take the law from the court and not from counsel is insufficient, it being his duty, upon objection duly made, either to direct counsel not to read the dissenting opinion or to plainly and *158unequivocally instruct tliat the dissenting opinion had no legal bearing upon the case. C. S., 203. Limitations on counsel in their argument to the jury discussed by Brogden, J.

Stacy, C. J., concurring.

Clarkson, X, dissenting.

Connor, J., concurs in dissenting opinion.

Civil action", before *Sinclair, J.,*at October Term, 1930, of Yakce.

This was an action instituted by the plaintiff against the defendant to recover damages for personal injuries sustained 3 April, 1930, at a crossing in the town of Henderson. The defendant denied the allegations of negligence, pleaded contributory negligence and other defenses not pertinent to a decision of this ease.

Issues of negligence, contributory negligence and damages were submitted to the jury and answered in favor of plaintiff. The verdict awarded $7,000 damages for personal injuries and $250 for property damage.

From judgment upon the verdict the defendant appealed.

*M. O. Pearce, D. P. McDuffie, G. A. Douglass and Thomas W. Ruffin for plaintiff.*

*Murray Allen and Pittman, Bridgers & Sides for defendant.*

BeogdeN, J.

The record shows the following: During the argument of one of the counsel for plaintiff to the jury, he made the following statement:

“The law in North Carolina says that all Mr. Conn had to do when he approached the track was to stop, if the circumstances were such that an ordinarily prudent man would stop, look and listen, and then go ahead as he did in this case.” “The North Carolina Supreme Court in the case of *Kimbrough v. R. R.,*180 N. C., 274, and decided in the year 1920, turned the defendant’s theory down flat. I want to read here what *Judge Ciarle*said about the law. *Judge Ciarle*was a great *Chief Juslice*of the Supreme Court and one who upheld the liberties of the people.”

Objection by defendant to plaintiff’s attorney reading from the opinion of *Judge Ciarle.*The court then charged the jury: “The jury will take the law from the court and not from counsel.”

Counsel for defendant: “We note an exception to the reading of the dissenting opinion of *Judge Ciarle."*

Objection by defendant; overruled; defendant excepts.

“Talking about going out upon the track, he said: ‘Gessler placed his hat upon a pole and compelled the public to pay obeisance to it. But neither, of these are more repugnant to our sense of propriety and right *159than to require tbe people traveling their own roads to come to a full stop at the sight of two parallel bars of iron laid across a public highway, simply because the railroads, while saving themselves the expense of avoiding grade crossings, are unwilling to take the trouble or responsibility to give proper signals or to establish gates and custodians whenever needed.’ ” This is *Judge Ciarle’s*language on it. I don’t care how much the attorney for the railroad objects to it. It is my opinion that the Supreme Court of North Carolina in the case of *Moseley v. R. R.,*197 N. C., 628, has backed *Judge Clark*up in his statement that it is not your duty to stretch your necks and bow to two iron rails. That is what you say the law is,” etc.

The foregoing excerpt from the record presents for decision this question of law:

In arguing a case to the jury, is it permissible for an attorney to read to the jury a dissenting opinion of one of the Justices of the Supreme Court of North Carolina?

Doubtless, it should be observed at the outset that a general dissertation or essay upon dissenting opinions is not pertinent to a solution of the question of law involved in this appeal. Suffice it to say that such opinions constitute valuable and helpful interpretation of the law as expounded or present in clear relief the divergent paths of legalistic thought upon a given subject. Moreover, at times, they may serve to demonstrate that courts and judges do not always fall into the goosestep of outworn precedent.

Prior to 27 December, 1844, an attorney was not permitted to argue law to a jury. In *S. v. Miller,*75 N. C., 73, *Justice Reade*said: “Some twenty-five years ago a circuit judge restrained a lawyer from arguing the law to the jury, suggesting that the argument of law ought to be addressed to the court, as the jury had to take the law from the court. Umbrage was taken at that, and the Legislature passed an act allowing counsel to argue both the law and the facts to the jury.” The act referred to is chapter 13, Public Laws of 1844, and is now embodied in C. S., 203, which provides that “in jury trials the whole case as well of law as of fact may be argued to the jury.” This declaration is broad and comprehensive and easily lent itself to a construction by the profession that the field of a jury argument was unlimited and boundless. Hence, in the course of time, it became necessary for courts to fence in the field by imposing certain restrictions upon counsel in presenting causes to the jury. These restrictions are reflected in certain legal inhibitions imposed by the courts. These inhibitions may be grouped and classified as follows:

1. Attorneys are not permitted, except in certain specific instances, to read medical books or writings of a scientific nature to the jury. *160*Melvin v. Easley,,*46 N. C., 386; *Huffman v. Click, 77*N. C., 55; *S. v. Rogers,*112 N. C., 874; *Butler v. R. R.,*130 N. C., 16; *Lynch v. Mfg. Co.,*167 N. C., 98; *Tilghman v. R. R., 171*N. C., 652. Nor can counsel read a paper-writing not in evidence for the purpose of impeachment. *S. v-. Bryan,*89 N. C., 531. The theory which excludes the reading o'f such publications, is based upon the idea that declarations in a book or opinions of experts contained therein, are not under oath, and hence cannot be classified as evidence. The exception to the general rule is pointed out in the *Tilghman case, supra,*in these words: “When an expert has given an opinion and cited a treatise as his authority, the book cited may be offered in evidence by the adverse party as impeaching testimony. But unless the book is referred to on cross-examination it cannot be used for this purpose. It would be a mere evasion of the general rule under discussion if counsel were allowed on cross-examination to read to the witness portions of such works, and to ask if he concurred in or differed from the opinion there expressed; hence this is not allowed.”

2. The second class of restrictions may be denominated as unfair comment and is discussed in many decisions, notably: *Jenkins v. Ore Co.,*65 N. C., 563; *S. v. Williams,*65 N. C., 505; *Coble v. Coble,*79 N. C., 589; *S. v. Davenport,*156 N. C., 596; *S. v. Tucker,*190 N. C., 708; *Lamborn v. Hollingsworth,*195 N. C., 350; *S. v. Green,*197 N. C., 624; *S. v. Beal,*199 N. C., 278. These illustrations of unfair comment, beginning with the familiar “poor widow and rich corporation” argument, running through the “Pennsylvania Yankee” appeal, including the famous upas tree declaration and ending with the religious and social theories referred to in the *Beal case,*all stand as a lasting monument to vituperative ingenuity. The climax of unfair comment in the literature of the law of this State was reached in the argument of counsel and the charge of the court in *S. v. Brown,*67 N. C., 435.

The third class of inhibitions denies to counsel the right to read the decisions of the Supreme Court of North Carolina where such reading would reasonably tend to prejudice either party upon the facts. *S. v. Corpening,*157 N. C., 621; *Forbes v. Harrison,*181 N. C., 461; *Elliott v. Power Co.,*190 N. C., 62. Thus, in the *Gorpening case,*the Court said: “As we understand the record, the counsel for the prosecution read the facts in *Malonee’s case,*relied upon as supporting evidence to the prosecutrix, and over defendant’s objection was allowed by the court to say in effect that a jury of Jackson County had convicted Malonee, and the supporting evidence was much stronger “than in *Mailome’s case,”*etc. A new trial was awarded because the trial judge permitted such argument to be made. In the *Forbes case*counsel attempted to read a portion of the opinion in *Bell v. Harrison,*179 N. C., 190, and *161upon objection by counsel for defendant tbe court declined to permit sucb reading, and tbis ruling was upheld. Tbe Court observed *“that*two cases grew out of said administration and there was grave danger of prejudicing tbe defendants upon tbe facts as counsel was allowed to read tbe part of tbe opinion in tbe case proposed to be read by him.”

4. Tbe fourth class of restrictions denies to counsel tbe right to comment upon extraneous matters upon which there is no evidence. *McLamb, Admr., v. R. R., 122*N. C., 862; *Hopkins v. Hopkins,*132 N. C., 25; *S. v. Love,*187 N. C., 32.

5. Tbe fifth class of restrictions excludes personal experience of counsel as part of tbe argument. *Perry v. R. R.,*128 N. C., 471.

Tbe courts of other jurisdictions have considered tbe question as to what may be read to a jury by counsel in tbe course of argument.

6. Tbe Court of Appeals of New York granted a new trial in tbe case of *Williams v. Brooklyn Elevated R. R. Co.,*26 N. E., 1048, because counsel, in tbe course of tbe argument, was permitted, over objection, to read to tbe jury an article appearing in tbe New York *Tribune,*entitled “Only a Boy Peddler.” Tbe article purported to be an account of tbe death of a little boy who was selling collar buttons and combs to help support bis mother and eight brothers and sisters, and bis death was caused by contact with a live wire swinging from a pole. Tbe Court said: “Tbe reading by counsel in summing up to tbe jury of tbe newspaper article ‘Only a Boy Peddler’ was wholly irrelevant to tbe case. It could have been read for no purpose except to inflame tbe jury against corporations, and to lead them, under tbe influence of a just anger excited by tbe incident narrated, to give liberal damages to tbe plaintiff in tbe case on trial. Tbe refusal of tbe court to interfere, under tbe circumstances of tbis case, was legal error. Tbe privilege of counsel, and tbe largest liberality in construing it, did not authorize sucb a totally irrevelant and prejudicial proceeding.”

Again in *People v. Fielding,*53 N. E., 497, tbe defendant was indicted for auditing a fraudulent claim against tbe city of Brooklyn. Tbe District Attorney, in tbe course of bis argument, referring to taxpayers, said: “I say you will see old men in that line clutching in their knotted fingers rolls of dirty one-dollar bills. Look at their worn and shabby garments. Look at tbe marks of painful labor written all over their aged and clumsy limbs. It is tbe money of these people which tbe defendant has stolen and squandered. These are tbe people whose cause I plead. These are tbe victims of tbe defendant’s crime. These are tbe people who now, by tens of thousands, are waiting outside for your verdict. 'Will you do them justice, or will you not? If you shall let tbis man, loaded with bis guilty plunder, escape, then I say you have committed tbe unpardonable sin.” Tbe court, in charging tbe jury, *162said: “Some things have been said about the newspapers, about popular clamor, and about the burden of the taxpayers. Those are considerations which are not to control or influence you in deciding this case.” The Court awarded a new trial, and in the course of the opinion it is said: “Even in a civil action, when counsel are permitted, under objection and exception, while summing up, to read to the jury an abstract from a pamphlet or newspaper, or to exhibit a cartoon, not in evidence, it is good ground for reversal. . . . So statements made by counsel, outside of the evidence, and subject to objection, which strongly tend to arouse sympathy, prejudice, or resentment in the minds of the jury, require a new trial, even if the court charges that they have nothing to do with the ease, and must be disregarded.” See, also, *Scripps v. Reilly,*38 Mich., 10.

7. Eulogies of deceased in suit for wrongful death. *Dixon v. Haynes,*262 Pac., 119. The Court of Washington said: “The misconduct of counsel complained of consists of an attempt by one of the counsel for respondent to read something to the jury which had not been introduced in evidence, appearing to be a eulogy of deceased, or something of the kind. Upon objection, the court refused to allow counsel to read it, and counsel for respondent was peremptorily directed to refrain from making any reference to any document not in evidence. Although counsel for respondent should not have attempted to read anything to the jury which had not been introduced in evidence on the trial, the court fully protected the rights of appellants, so that no prejudicial error occurred.”

8. Counsel are not permitted to read to the jury, as law, decisions which are inapplicable to the facts, or which do not declare the law as held by the jurisdiction in which the trial occurs. This principle was announced by the Supreme Court of South Carolina in *Key v. Carolina & N. W. Ry. Co.,*147 S. E., 625. The Court said: “It appears from the record that the presiding judge permitted appellant’s counsel to read the entire decision of the United States Supreme Court in the *Goodman casa*to the jury in the trial of the case at bar, but that the court refused to' charge the law of that case, and on motion for a new trial failed to grant the same because the jury had disregarded the principles announced in the *Goodman case. . . .*Lately, it has been cited often by counsel for railroad companies in this Court, and it has received considerable attention in dissenting opinions. A majority of the Court has never indorsed the views of that case. The only mistake made by the presiding judge in this connection was in permitting counsel for the appellant to read the decision in the *Goodman case*to the jury.” *Union Pac. R. R. Co. v. Field,*137 Fed., 14; *Ray v. Chesapeake & Ohio R. R. Co., 50 S.*E., 413; *Farnandis v. Great Northern R. R. Co.,*84 Pac., 18.

*163Tbis Court expresses no approval or disapproval of tbe various principles announced in other jurisdictions upon tbe subject, but sucb decisions are referred to in order to demonstrate tbe trend of judicial thinking. Tbe range of a jury argument is carefully and correctly set forth by McIntosh North Carolina Practice and Procedure, sec. 569, *et seq.*Summarizing tbe principles of legitimate argument by counsel, tbe author says: “But be may refer to well-known facts in history, literature, and science by way of illustration and ornament. He may argue matters of common knowledge, or matters of which tbe court will take judicial notice; and within tbe limits of tbe evidence tbe manner of presenting tbe case is left to bis own judgment. He may indulge in impassioned bursts of oratory, or what be may consider oratory, so long as be introduces no facts not disclosed by tbe evidence. It is not impassioned oratory which tbe law condemns and discredits in tbe advocate, but tbe introduction of facts not disclosed by tbe evidence. It has been held that be may even shed tears during bis argument, tbe only limitation on tbis right being that they must not be indulged in to sirch excess as to impede or delay tbe business of tbe court.”

Applying tbe principles deduced from tbe authorities, it is clear that a dissenting opinion is not admissible in evidence, and hence cannot be classified as a fact. Neither is it tbe law of tbe particular case, else it would not be a dissenting opinion. Manifestly, a dissenting opinion expresses tbe individual view of tbe judge who writes it, and thus would logically fall into tbe classification of newspaper editorials, magazine articles, pamphlets, or other writings, which have not received the' judicial sanction of a court. Therefore, tbe Court concludes that it is not permissible, upon objection duly made and entered, for an attorney to read as tbe law of tbe case a dissenting opinion of one or more of tbe Justices of tbe Supreme Court.

A perusal of tbe record discloses, beyond a doubt, that tbe dissenting opinion in tbe *Kimbrough case*was read to tbe jury as a correct statement of tbe law. Tbe trial judge, upon objection, made a general observation to tbe jury, but tbis was not sufficient. It was bis duty, upon objection duly made, either to direct counsel to refrain from sucb reading or instruct the jury plainly and unequivocally that tbe dissenting opinion bad no legal bearing upon tbe case.

New trial.

Stacy, C. J.,

concurring: A verdict, or *veredictum*as it was called in tbe old English law, is, as indicated by tbe derivation of tbe word, tbe *dictum*of truth. It is tbe finding of a jury, or tbe accord of tbe twelve, as distinguished from tbe decision of a court, a referee, or a commissioner.

*164Verdicts are to be rendered on evidence pertinent to tbe issues, and not on extraneous matters. Animadversions or conclusions of others, therefore, based on different fact situations, whether found in legal opinions or elsewhere, are neither relevant nor competent, as they tend to mislead rather than to aid in reaching the correct determination of a particular case. And exact justice is the goal of every judicial inquiry.

Not only is the establishment of justice the goal of every judicial inquiry, but, in a sense, it may rightly be denominated the end of all government, if not the end of all civil society. It has ever been and ever will be pursued by men until it is attained, or until liberty is lost in the pursuit. Justice is not an abstraction, nor yet an ethereal, intangible something, but rather an act of the mind, a positive resolution and the will to see that every man shall have his due. The quality of right or wrong is not a physical manifestation, but it is the attribute of a mental concept produced by external stimuli. No act acquires color or meaning-content until it is brought in judgment, and the correctness of every judgment depends upon its own approximation or nearness to the truth.

Here, the rightness or the wrongness of the conduct of the parties is not in the street-crossing, nor in the collision of the automobile with the engine, nor yet in the actions of the plaintiff and the engineer, but it is to be found first in the minds of the witnesses, next in the verdict of the jury, and finally in the judgment of the court. There can be no conclusion of right or wrong where there is no1 mental determination. This is the result of an intellectual process, the mind’s characterization or classification of phenomena. The character of an act is determined first by the category to which it is assigned in the mind of the listener or the observer and finally by the settled judgment of the community. Thus an act pronounced good or lawful today may be declared bad or unlawful tomorrow, and *vic& versa,*by reason of a change in the standard of judgment. It is only by the refining process of growth that we are able to approach, if not reach, the ideal of absolute justice — a consummation devoutly to be wished, if happily we may find it.

A’s conduct is approved or condemned by B according to B’s conception of right, and B’s conduct is approved or condemned by A according to A’s estimate of right, the correctness of the judgment in each case depending, in its final analysis, upon the correctness of the standard by which it is made. As thus understood, justice is universal in its application, and it likewise imposes an universal obligation. It is as much a duty to see that justice is rendered to others as it is to demand it for one’s self, and to fail in either is a questionable act. The character of the conduct of a man as he walks along the street is to be judged, in the *165first instance at least, by those who observe bis conduct in the street. In a very real sense, therefore, every man is his brother’s keeper and is in duty bound to him according to the precepts of the golden rule. This is the basis of the injunction: “Ye shall do no unrighteousness in judgment; thou shalt not respect the person of the poor, nor honor the person of the mighty: but in righteousness shalt thou judge thy neigh-bour.” Lev. 19 :15. Out of the theory that the binding estimate of the community or “law is the highest expression obtainable, at any given time, of the people’s conception of the correct rule of conduct,” rules of evidence have been evolved, all having as their one aim the discovery of truth, upon which just judgments may be rendered.

As the matter complained of was extraneous to the inquiry and was calculated to hurt rather than to help appellant’s cause, it should have been excluded. The conclusions reached by the writer of the dissenting opinion, which counsel read to the jury, grew out of a different fact situation from the one here disclosed; and, as said by *Marshall, C. J.,*in *U. S. v. Burr,*4 Cr., 470, “Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered.” Furthermore, the opinion read was not the law of that case, nor of this one. That part of C. S., 203, therefore, which provides, “In jury trials the whole case as well of law as of fact may be argued to the jury,” is not applicable to the instant facts.

ClaRksoN, J.,

dissenting: C. S., 203, in part: “In jury trials the whole case as well of law as of fact may be argued to the jury.”

The record, quoting *all of it*upon which a new trial is awarded, is as follows: “During the argument of Thos. W. Ruffin, of counsel for plaintiff, to the jury, he made the following statement: ‘The law of North Carolina says that all that Mr. Conn had to do when he approached that track was to stop, if the circumstances were such that an ordinarily prudent man would stop, look and listen, and then go ahead, as he did in this case.’ The North Carolina Supreme Court in the case of *Kimbrough v. R. R.,*reported in 180 N. C., at p. 274, and decided in the year 1920, turned Mr. Allen’s (speaking of defendant’s attorney) theory down flat. I want to read here what *Judge Claris*said about the law. *Judge Claris*was the great *Chief Justice*of the Supreme Court and one who upheld the liberties of the people. (Objection by defendant to plaintiff’s attorney reading from opinion of *Judge Claris.)*The court then charged, ‘The jury will take the law from the court, and not from counsel.’ Counsel for defendant: We note an exception from the reading of the dissenting opinion of *Judge Claris.*Objection by defendant; overruled; defendant excepts. Talking about going out upon the track *166be said: 'Gessler placed bis bat upon a pole and compelled tbe public to pay obeisance to it. But neither of these are more repugnant 'to our sense of propriety and right than to require tbe people traveling their own roads to come to a full stop at tbe sight of two parallel bars of iron laid across tbe public highway, simply because tbe railroads, while saving themselves the expense of avoiding grade crossings, are unwilling to take the trouble or responsibility to give proper signals or to establish gates and custodians whenever needed.’ That is *Judge, Clark’s*language on it. I don’t care how much Mr. -Allen objects to it. It is my opinion that the Supreme Court of North Carolina in the case of *Moseley v. R. R.,*197 N. C., at p. 628, has backed *Judge Ciarle*up in his statement that it is not your duty to stretch your necks and bow to two iron rails. That is what you say the law is. The Supreme Court of North Carolina does not say that in this *Moseley case*here. I want to read this. It is the last word from the Supreme Court of North Carolina on the question : 'If the plaintiff’s view is obstructed or his hearing an approaching train is prevented, and especially if this is done by the fault of the defendant (remember the defendant in this case had a little old shanty out there and that is the reason he could not see by it — especially if this is done by the fault of the defendant), the company’s servants fail to warn him of its approach (what Mr. Coon said they did here), and induced by this failure of duty, which had lulled him into security, he attempted to cross the track and is injured, having used his faculties as best he could, under the circumstances (Look if you can. If you can’t look, listen and you have a right to listen. His Honor will charge you that any man driving or walking across a railroad track, having used his faculties as best he could by listening and looking, has a right to expect that the railroad is going to carry out its duty, had a right to assume that the railroad will be careful in running at the proper speed, and ringing its bell) — having used his faculties as best he could, to ascertain if there is any danger ahead, negligence will not be imputed to him, but to the company, its failure to warn him being regarded as the proximate cause of any injury he received.’ That case is dated 30 October, 1929, just a year ago.”

This record discloses that the learned attorney for plaintiff, taking the argument as a whole, was comparing the dissenting opinion in the *Kimbrough case*and showing similarity to the *Moseley case,*which was a unanimous decision of this Court. In the controversy *the court then charged: "The jury will lalee the law from the court and not from*counselThis was a clear, well understood charge by the court below to the jury. When the court came to charge the jury the law was stated so accurately that there is no question made in the main opinion that the court below did not charge the law applicable to the facts correctly.

*167Then, again, since tbe decision in tbe *Kimbrough case,*tbe Legislature of North Carolina has practically said wbat *Judge Cla/rlc*said: Acts 1923, cb. 255, sec. 1, N. 0. Code, 1927 (Micbie), 0. S., 2621(b) : “No person operating any motor vehicle upon a public road shall cross or attempt to cross, any railroad or interurban track intersecting tbe road at grade, other than a crossing at which there is a gate or a watchman (except an electric railway track in a city, town or village), without first bringing said motor vehicle to a full stop at a distance not exceeding fifty (50) feet from the nearest rail. No *failure so to stop, howener, shall be considered contributory negligence per se in any action against the railroad or interurban company for injury to' person or property, but the facts relating to such failure to stop mpy be considered with the other facts in the case in determining whether the plaintiff was guilty of contributory negligence*

The failure of a motorist to' stop his automobile before crossing a railroad at a grade crossing on a public highway, as directed by this section, “at a distance not exceeding fifty feet from the nearest rail,” does not constitute contributory negligence *per se*in his action against the railroad company to recover damages to his car caused by a collision with a train standing upon the track, and where the evidence tends only to show that the proximate cause of the plaintiff’s injury was his own negligence in exceeding the speed he should have used under the circumstances, a judgment as of nonsuit thereon should be entered on defendant’s motion therefor properly entered. *Weston v. R. R.,*194 N. C., 210 (written for the Court by *Brogclen, J.).*

The *Moseley,*and other cases too numerous to cite, are similar to the *Kimbrough case,*and written since the above statute was enacted. From the charge of the court below: “The jury will take the law from the court and not from counsel,” a new trial granted in this case will seriously hamper the sound discretion of the court below and tend to land its discretion in quick-sand.

I think a new trial granted on the record in this case is technical in the extreme, and contrary to the well settled principles of law, time and time again reiterated by the Court, viz.,: “The appellant is required to show error, and he must make it appear plainly, as the presumption is against him.”

CoNNOR, J., concurring.