Monier v. Philadelphia Rapid Transit Co. , 227 Pa. 273 ( 1910 )

Opinion by

Mr. Justice Mestrezat,

February 21, 1910:

We are compelled to sustain the second and third assignments of error and reverse this judgment. The language of the charge complained of in these assignments would manifestly prejudice the jury against the defendant company. We have condemned language of similar import used by counsel in arguing a case to the jury, and with greater reason it should not be employed by the court in submitting the case to the jury. The trial judge may express his views on the evidence in a proper and dispassionate manner so long as he leaves the jury entirely free to consider the evidence and determine the facts. He may not, however, by the use of violent and impassioned language discuss the parties, the witnesses, or the evidence in such manner as to prevent a calm and impartial consideration of the case by the jury. A litigant has a right to a trial by a fair and impartial jury whose consideration of his cause is not influenced by any language of the court which would create resentment or prejudice against him.

With this standard as our guide, it will be seen that the appellant has just cause to complain of the language used in submitting this case to the jury. The action was trespass by the plaintiff, a passenger on one of defendant’s cars, to recover damages resulting from “the rude and unwarranted action of the conductor” in pushing the plaintiff from the car. With the merits of the case we have no concern on this appeal. The testimony of the plaintiff tended to place the conductor in an unenviable light and to show that his treatment of the plaintiff was wholly indefensible. The defendant’s evidence justified the conductor’s behavior on the occasion. In view of the issue and the evidence adduced to sustain it, it was therefore important, in order to secure a fair and unbiased consideration by the jury, that the court, in its- charge, should review the case in a calm and dispassionate manner. The language used in the charge cannot be so characterized. The epithets applied by the court' to the defendant’s conductor painted him as a degenerate for whose punishment the law scarcely made adequate provision. Conceding the conductor’s treatment of the plaintiff to be inexcusable and properly censurable, the jury, to enable it to dispassionately consider the evidence, did not need to be told that a man guilty of such conduct was cruel, lowbred, brutal and criminal, and “that if justice had been vindicated upon those facts at the time, he would not have been now half through the service of a sentence in the penitentiary or the county jail at the date of this trial.” Nor did it assist the jury in fixing the amount of damages, the court having told them that compensation and not punishment was the measure, for the learned judge to charge that if there was a verdict for the plaintiff, “there would be no limitation to your damages as against the defendant under such circumstances.” Neither can it be asserted with absolute confidence that sympathy for the plaintiff and resentment against the defendant company were entirely driven from the minds of the jurors by being told by the learned judge that the company was not responsible “for the malicious actions of unreliable characters.” All the language quoted above is to be found in one paragraph of the printed charge, and there is nothing in the context or other parts of the charge which relieves it from the- manifest effect to blacken the character of the conductor and prejudice the jury against the defendant company. The attempt of the learned judge, after counsel had excepted to his intemperate language, to “eliminate all consideration of that from your deliberations” would not be effective in excluding it from the minds of the jurors. It had gained a lodgement there, and could not be eradicated by a simple suggestion after the charge.

The language embraced in the third assignment is also objectionable and was not pertinent to the issue raised by the pleadings. The plaintiff’s right to recover did not depend on his general character or his nationality, but on his ability to sustain by competent evidence the averments of his statement which raises no issue as to either his character or his nationality. This part of the charge directed the jury to consider and determine questions not in the case, and tended to arouse sympathy on behalf of the plaintiff.

The judgment is reversed with a new venire.