Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-09-07
LANDERs v. OHIO RIVER r. CO.,
s Supreme Court Of West Virginia.
April % 1899

Z Il -. q q - i1Haf -
q LAAlNDERs v. OHIO RIVER r. CO.
rs Supreme Court Of West Virginia,
April 90. 1899.
AN COURT WILL NOT
REVISE ERRORS PREDICATED
UPON THE ABUSE OF COUNSEL
OF HIS PRIVILEGE INsARGUING
THB CASE BELOW, UNLESS IT.
APPEAR THAT EHE OTHER
I PARTY ASKED AND WAS RE-
FUSED AN INSTRUCTION TO THE
JURY TO DISREGARD THE UN-
AUTHORIZED STATEMENTS OF
THE COUNSEL.
The point decided appears from the
opinion of the Court
The Court says:
The ninth assignment is that court
erred In permitting counsel for plaintiff,
in their argument before the jury, to
use the language set forth in bills of
exception Nos. is and II, and apply the
same to defendant and defendants wit
nesses. The language complained of in
bill No. 16 Is as follows: A railroad
Is an artificial being, without life, with
out soul, as cold as iron. as heartlcss
as marble; that 1t had no wife. no child,
no life; that its mana gement through
its agents. was rs deviish as 1t could
be-" And that set forth In bill No IT
as follows: During these hard times,
when employment is scarce, when rail-
road men are plenty, when there are
those in good employment, 1t is great
incentive, If they have committed a
wrong. to try to help 1t out. and cover
1t up, SO the road will not be liable to
discharge them. Every inducement
in trying to get them to misrepresent
the facts, IL there is a wrong commit
ted, and make the railroad free from
damages, is used that can be mustered
up within the human breast" In Young
v. State. 10 Tex. App. 536 (Syl, point
%: 'In order to authorize this court
to revise errors predicated upon the
abuse of the counsel of the privilege of
argument, it should be made to appear
that the accused requested, and was re-
fused, an instruction 10 the jury to dis
regard the unauthorized statements of
the counsel" In discussing the matter
ant excepted to said remarks, and did
nothing more" that counsel should
have requested the Court to instruct
the jury that they should not be influ-
enced by the remarks so objected TO-
Court further say, If such instruction
had been asked and refused. the error
would have been sufficient to reverse
the judgment, but this was not done;
and this was case i'll which the aflir-
nance OF the Judgment remanded the
appellant to his death. In Vannatta
V. Duffy. 4 Ind. App. 16S, the Court
hold that:
I'm order to save the question of al
legged misconduct on the part of couR-
sci in making an argument to the jury,
an objection should have been made,
and a ruling insisted upon. that the re-
marks were improper. and that they
should BIO withdrawn by counsel and
disregarded by the jury, and, falling
q 81 hi inc
ton should have been taken to the ac-
ton Of the court. After this, still
other remedies were available. The
party could have moved to set aside the
submission. and discharge the jury, or
he could have asked the court to give
a special instruction upon the subject
of the counsel's objectionable remarks"
In State V. Hull, IS r. ]. 207. '''At the
trial the Attorney General stated to the
jury that 1t was the privilege Of the
defendant to testify or not, and then
strongly commented on the defendants
omission to testify or to adduce evil
dence. The court condemns the con-
duct OF the Attorney General, but, as
the record showed no request made by
the defendant for instructions to the
jury to disregard the Attorney General
statements, decline to consider such
conduct as n reason for n new trial."
If the appellant desired the full benefit
OF his exception to the language used,
1t was his duty to insist that the same
should be withdrawn from the jury, or
have the court instruct the jury to dis
regard it. and upon refusal of the court
to so instruct, to except to the ruling
of the court, or to move to set aside
the submission and discharge the jury,
because they were prejudiced against
the appellant by said language; and the
defendant, having made no motion to
arrest the trial on that score" but pro-
ceeded with the trial without objec-
ton. will not afterwards be heard to
object that the trial was vitlated there
by" While do not think the Ian
guage complained of is sufficient
ground for new trial, even if appellant
mad taken ar tire rrecesss4Ay,r- cps
have the full benefit of his objections,
yet. rs the matter comes up on the re-
cord. and is urged as ground for re-
versal of the judgment and granting
a new trial. I deem it proper for this
court to express, as it has on former
occasions, disapprobation of that style
of argument before n jury.