PIoefheiMer, J.; ITosea, J., concurs; Swing, J.,
concurs in a separate opinion.
This was an action to recover damages for wrongful death. A substantial verdict was rendered by the jury ($7,650), and in due course judgment was rendered thereon. There is no claim that the verdict is against the weight of the evidence, but error is prosecuted -to this court for the reasons taken up seriatim — ■
.1. It is claimed -that there was misconduct of counsel at the conclusion of the direct examination of witness Della Wright. Plaintiff in error claims that counsel contemptuously remarked, and in the hearing of the jury: “It is very amusing.” At page 172 of the record the following question was put:
Q. “Then what happened?”
[464]*464A. “ There was a crash. ’ ’
Mr. Rogers: “That is all.”
Mr. Iiealy: “That is all. It is'very amusing.”
Mr. Kinkead: “I take exception to the remark' of counsel.'”
The court it séems, did not take any action, and the claim is now made that this failure of the court to take action in effect amounted to an approval of counsel’s comment, and that it led the jury to suppose that the court was in sympathy with the remark. In other words, that the remark was clearly in the nature of unfair comment on the evidence, and that error will be presumed, unless .it affirmatively appear that the. prejudicial tendency had been removed by a proper instruction given by the court, or by a retraction of counsel, or both. C., P. & E. Railroad v. Pritschau, 69 O. S., 438; Hayes v. Smith, 62 O. S., 186.
We do not doubt but that the rule announced in these cases is a most .salutary one, when applied to circumstances justifying its application, but we do not believe that the principle was ever intended to apply to a mere desultory remark, such as this appears to have been. In the Pritschau ease the comments complained of' were numerous and untimely, and in the ITayes case the frequent recurrence of the objectionable conduct is thus spoken of by the Supreme Court:
“Thus sustained and passing unrebuked by the court, although .the attention of the latter was frequently challenged by counsel for defendant, it could not fail to impress itself on the jury as sanctioned by the character of counsel and approved by the trial judge.”
2. As shown on page 206 of the record, one of counsel for plaintiff below in addressing the jury made use of the following language:
“We think the evidence which has been adduced in this case has met substantially the statements made by Mr. Iiealy in his opening statement to you, although it has been with great difficulty apparently, owing to the objection of the other side to get at the facts in the ease.”
Counsel for plaintiff in error objected to this statement, and the court said: “Go ahead.” By directing the counsel to go [465]*465ahead, it is claimed the court below expressly endorsed this language, and that this criticism of plaintiff in error’s counsel tended to prejudice his client by misleading the jury, and directing their minds from the strict line of inquiry with which they were charged. We note that the record discloses plaintiff in error’s objection, and that the court did not rule on the objection. While it may not be necessary to have the court’s ruling, an exception must still be reserved. No exception appears to' have been reserved, and consequently the point can be given no further consideration. ¿
3. It is claimed that the court erred in failing to instruct the jury that they were to disregard some alleged statements of counsel for plaintiff .below, with reference to a certain paper writing, with which counsel was endeavoring to call the witness’ attention, evidently to-some prior statement made-therein. It is not necessary to determine whether .the court ⅛ ruling was correct (the court sustained plaintiff in error’s objection), and we note that the court aftér it w.as requested to warn the jury that they were not to pay any attention to ,any remarks in regard to the paper, said •
The Court: “I fear I would make a mistake as much as if I ruled the other way. I would have to go into .the grounds for the ruling at length.”
Mr. Kinkead: “I just want them warned.’’
The Court: “I will say to the jury, I don’t want them to consider any testimony out of the case. I have ruled that out of the case; that document or anything that relates to it.”
Mr. Rogers: “Or any other statement of counsel that related to that?”
The Court: “Nó, I decline to do that.”.
When the court said that the .testimony sought to be introduced was ruled out, and when it instructed the jury that it was not to consider any testimony out of the case — -“.that document or anything relating to it” — we think the court- had fully and sweepingly cautioned the jury in that regard, and had done all that could'have fairly been asked. Without being captious, we do not see, in view of the caution thus given that the court’s final instruction, that the jury was to base its verdict on “a [466]*466consideration of the evidence, ’ ’ bow plaintiff in error could bave suffered any prejudice for the reason urged.
4. The next error assigned is with reference to the court’s general charge -to .the jury. After instructing the jury on the alleged negligence of the railroad company and the alleged negligence of deceased, the court instructed-the jury that, if they should find that the company was negligent, and Jennings was negligent—
“Then it would be your duty to go another step, and go into the examination of .the conduct of the servants of the railroad company after they had discovered, or in the exercise of ordinary care could have discovered the danger the driver, Jennings, was in at the time. On that point the duty is on the railroad company, through its motorman, to have its ear under what is called control. That is, the ear must be in the power, dominion and government of the motorman, to such an extent that when he saw this vehiclé'oh the track, or when-by the exercise of ordinary care in his duty of looking, out and, watching for vehicles, he ought to have seen this cab on the track, l5he could stop his car within a reasonable .time and reasonable distance, so as to avoid, if possible, the collision.”
Counsel for plaintiff, in error asserts that the court below- i-n giving this charge followed P., C., C. & St. L. v. Hall, 3 O. L. R., 364, and asks this court to reverse that ruling. Since the case under consideration has been submitted the Hall case has been affirmed by the Supreme Court, and we therefore are of opinion .that the charge as given by the trial court was proper. See, also, Railway Co. v. Schade, 15 C. C., 424; Railroad Co. v. Snell, 54 O. S., 206.
5. It is claimed the court erred in giving special charge No. 1. The special charge is as follows:
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PIoefheiMer, J.; ITosea, J., concurs; Swing, J.,
concurs in a separate opinion.
This was an action to recover damages for wrongful death. A substantial verdict was rendered by the jury ($7,650), and in due course judgment was rendered thereon. There is no claim that the verdict is against the weight of the evidence, but error is prosecuted -to this court for the reasons taken up seriatim — ■
.1. It is claimed -that there was misconduct of counsel at the conclusion of the direct examination of witness Della Wright. Plaintiff in error claims that counsel contemptuously remarked, and in the hearing of the jury: “It is very amusing.” At page 172 of the record the following question was put:
Q. “Then what happened?”
[464]*464A. “ There was a crash. ’ ’
Mr. Rogers: “That is all.”
Mr. Iiealy: “That is all. It is'very amusing.”
Mr. Kinkead: “I take exception to the remark' of counsel.'”
The court it séems, did not take any action, and the claim is now made that this failure of the court to take action in effect amounted to an approval of counsel’s comment, and that it led the jury to suppose that the court was in sympathy with the remark. In other words, that the remark was clearly in the nature of unfair comment on the evidence, and that error will be presumed, unless .it affirmatively appear that the. prejudicial tendency had been removed by a proper instruction given by the court, or by a retraction of counsel, or both. C., P. & E. Railroad v. Pritschau, 69 O. S., 438; Hayes v. Smith, 62 O. S., 186.
We do not doubt but that the rule announced in these cases is a most .salutary one, when applied to circumstances justifying its application, but we do not believe that the principle was ever intended to apply to a mere desultory remark, such as this appears to have been. In the Pritschau ease the comments complained of' were numerous and untimely, and in the ITayes case the frequent recurrence of the objectionable conduct is thus spoken of by the Supreme Court:
“Thus sustained and passing unrebuked by the court, although .the attention of the latter was frequently challenged by counsel for defendant, it could not fail to impress itself on the jury as sanctioned by the character of counsel and approved by the trial judge.”
2. As shown on page 206 of the record, one of counsel for plaintiff below in addressing the jury made use of the following language:
“We think the evidence which has been adduced in this case has met substantially the statements made by Mr. Iiealy in his opening statement to you, although it has been with great difficulty apparently, owing to the objection of the other side to get at the facts in the ease.”
Counsel for plaintiff in error objected to this statement, and the court said: “Go ahead.” By directing the counsel to go [465]*465ahead, it is claimed the court below expressly endorsed this language, and that this criticism of plaintiff in error’s counsel tended to prejudice his client by misleading the jury, and directing their minds from the strict line of inquiry with which they were charged. We note that the record discloses plaintiff in error’s objection, and that the court did not rule on the objection. While it may not be necessary to have the court’s ruling, an exception must still be reserved. No exception appears to' have been reserved, and consequently the point can be given no further consideration. ¿
3. It is claimed that the court erred in failing to instruct the jury that they were to disregard some alleged statements of counsel for plaintiff .below, with reference to a certain paper writing, with which counsel was endeavoring to call the witness’ attention, evidently to-some prior statement made-therein. It is not necessary to determine whether .the court ⅛ ruling was correct (the court sustained plaintiff in error’s objection), and we note that the court aftér it w.as requested to warn the jury that they were not to pay any attention to ,any remarks in regard to the paper, said •
The Court: “I fear I would make a mistake as much as if I ruled the other way. I would have to go into .the grounds for the ruling at length.”
Mr. Kinkead: “I just want them warned.’’
The Court: “I will say to the jury, I don’t want them to consider any testimony out of the case. I have ruled that out of the case; that document or anything that relates to it.”
Mr. Rogers: “Or any other statement of counsel that related to that?”
The Court: “Nó, I decline to do that.”.
When the court said that the .testimony sought to be introduced was ruled out, and when it instructed the jury that it was not to consider any testimony out of the case — -“.that document or anything relating to it” — we think the court- had fully and sweepingly cautioned the jury in that regard, and had done all that could'have fairly been asked. Without being captious, we do not see, in view of the caution thus given that the court’s final instruction, that the jury was to base its verdict on “a [466]*466consideration of the evidence, ’ ’ bow plaintiff in error could bave suffered any prejudice for the reason urged.
4. The next error assigned is with reference to the court’s general charge -to .the jury. After instructing the jury on the alleged negligence of the railroad company and the alleged negligence of deceased, the court instructed-the jury that, if they should find that the company was negligent, and Jennings was negligent—
“Then it would be your duty to go another step, and go into the examination of .the conduct of the servants of the railroad company after they had discovered, or in the exercise of ordinary care could have discovered the danger the driver, Jennings, was in at the time. On that point the duty is on the railroad company, through its motorman, to have its ear under what is called control. That is, the ear must be in the power, dominion and government of the motorman, to such an extent that when he saw this vehiclé'oh the track, or when-by the exercise of ordinary care in his duty of looking, out and, watching for vehicles, he ought to have seen this cab on the track, l5he could stop his car within a reasonable .time and reasonable distance, so as to avoid, if possible, the collision.”
Counsel for plaintiff, in error asserts that the court below- i-n giving this charge followed P., C., C. & St. L. v. Hall, 3 O. L. R., 364, and asks this court to reverse that ruling. Since the case under consideration has been submitted the Hall case has been affirmed by the Supreme Court, and we therefore are of opinion .that the charge as given by the trial court was proper. See, also, Railway Co. v. Schade, 15 C. C., 424; Railroad Co. v. Snell, 54 O. S., 206.
5. It is claimed the court erred in giving special charge No. 1. The special charge is as follows:
“It is not negligent in the driver of a vehicle to attempt to cross a street car track ahead of an approaching car, when the car is so far away that by the exercise of reasonable care it might have stopped before reaching the place of crossing.”
We think this was justified by the evidence. See, also, Railroad Co. v. Westenhuber, 22 C. C., 67, at page 69 (affirmed 65 O. S., 567).
[467]*4676. Charge No. 4 was also complained of, and we likewise think this charge was justified. See Nellis on Street Railroad Company Accident Law, at page 704, and cases cited.
We find no error in .the court’s refusal to'give the next special charge, claimed to have been requested by defendant below, The record states that this charge was requested by plaintiff below, but if we have any right under these circumstances to consider this charge at all, we think it would still have been for the jury to say whether the deceased had been negligent in undertaking to pass in front of the approaching ear.
The special charges requested by defendant below we think were properly refused, and we are of opinion that the general charge of the court, taken as a whole, was a fair exposition of the law governing the case.
Finding no error .prejudicial to the plaintiff in error, we are of opinion that the judgment should be affirmed, and it is so ordered.