Smith, J.
Suits were brought for Benjamin Hairston, a minor about eighteen years old, by-his father as his next friend, and by his father on his own account, to recover damages to compensate a personal injury caused by a freight car of appellant’s train running over and crushing one of the boy’s feet. The suits were consolidated and tried together, and judgments for substantial sums — which, however, appellant does not complain against as-excessive — were rendered in both cases.
The evidence in the case is sharply conflicting, and no attempt is made to reconcile it. According to the boy, his injury occurred under circumstances which warrant a finding of liability against the railroad company; while, according to the evidence of the company, there was no liability whatever. The cause appears to have been submitted to the jury under proper instructions, and under the well established rule that we do not pass upon questions of mere preponderance of the evidence, we would affirm the judgment of the court below as being sustained by legally sufficient evidence if only the question of the sufficiency of the evidence was involved. Seven witnesses testify as to the circumstances under which young Hairston was injured. According to his own testimony he had beaten his way on a freight train from his home in Morrilton to Russellville, and was returnifig home from Russellville in a box car, with two companions, all of whom were “beating their way.” Two brakemen, who were stationed in the caboose about fifteen cars behind the box car in which appellee and his companions took passage, observed their presence there, and one of these brakemen, a man named Young,- went to this car and ordered Hairston and his companions out of it. That this command was given him after he had told the brakeman that he had no money to pay him, but the brakeman, with profane language and menacing threats, compelled Trim to climb out of the door of the ear, and. while he was so doing the brakeman threw some object at him which struck him on the forehead and rendered him unconscious, and when he regained consciousness he found that he had fallen under the train and that his foot had been crushed. He admitted that he had at first explained his injury by stating that the brakeman had kicked him in the face and caused him to fall. The almost physical impossibility of this last statement is apparent when the relative situations of the parties is considered, the brakeman being on top of the car while Hairston was climbing out of the side door. Hairston made no attempt to reconcile his conflicting statements except to say that when he made his first explanation he was only talking; while at the trial he was “swearing now.”
According to the evidence of his two companions, Hairston debarked from the ear in safety, and was injured as he attempted to catch another , car. That Hairston was an expert in catching trains and had been seen frequently to catch trains running faster than this train was going at the time of his injury. These companions of Hairston are substantially corroborated by the brakemen, and also by a farmer and his son who witnessed the injury from their field where they were at work.
Some conflict appears in the evidence of witnesses for appellant as to whether Young’s head was lying towards the north or the south as he looked into the car where the boys were riding, and much importance is attached to this discrepancy by counsel, who insists that because of it the jury disregarded most of the evidence which was in conflict with that of Hairston.
(2) It is urged that error was committed in permitting a doctor who had examined Hairston’s injuries to testify without having been sworn. This question was raised for the first time after the verdict had been returned. Counsel explained the failure to raise the question earlier by stating that they were not advised of the fact sooner. The integrity of the trial cannot be thus defeated. The ease does not present the question of a witness who was permitted to testify after refusing to be sworn or of
the grant of permission to a witness to testify without having first taken the oath prescribed by law. It is a mere ease of inattention for which, no doubt, appellant is as much responsible as the appellee. At any rate, the error is-one which appellant could easily have avoided, and it is, therefore, one of which it is now in no position to complain. Similar questions have been raised in regard to jurors who have been permitted to serve who did not possess the qualifications required by law, and in such cases it has been uniformly held that where no imposition was practiced, whereby the juror was permitted to serve, that complaint would not thereafter be heard when no effort had been made to elicit from the juror the facts from which his incompetency would have appeared. Brown v. St. L. I. M. & S. B. Co., 52 Ark. 120; James v. State, 68 Ark. 464; Casat v. State, 40 Ark. 515. We must so hold in regard to this witness.
(2) The record contains the following recital: “In his closing argument to the jury, A. S. Hays, one of the attorneys for the plaintiff, stated to the jury: ‘Gentlemen, Judge Bullock said we should all be honest. Yes, we ought to be. But I state to you that the defendant is not honest in this ease and is trying to avoid payment of its just liability. Now, in the Burriss case the railway company admitted its liability but denied the plaintiff was injured. In this case, it admits the injury but denies the liability. No, gentlemen, the railway company don’t admit liability and injury both in the same ease.’ ” Whereupon the attorney for the appellant objected to the above statement, when Mr. Hays said: “I am making this statement in answer to Judge Bullock’s remarks a while ago about honesty of the parties.” An objection was thereupon overruled by the court. Whereupon Mr. Hays turned to the attorney for the defendant company and in a loud voice so that the jury could hear his remarks said: “Write it out; put it in the record. I stand upon the statement.” Counsel for appellant at the time objected to this statement and asked the court to exclude it, which request was by the court overruled, and exceptions were duly saved. The Burriss case to which reference was made was a personal injury ease against the appellant company, and at the time the remarks quoted were made the jury in that ease was still engaged in their deliberations. 1
Counsel for appellant insists that this improper argument was responsible for the verdict of the jury, and because of it the jury did not decide the case in accordance with the overwhelming preponderance of the evidence. No question arises of tener upon appeals to this court than that of some alleged improper argument. We have frequently announced the correct policy to be pursued by the trial courts in such cases, and have also frequently stated our own policy in such matters. The difficulty does not lie in defining the rule to be^pursued in such cases, but is found in applying that rule to the facts and circumstances of the particular case. In 2 R. C. L. 425, it is said:
“It is the unquestionable privilege of counsel to indulge in all fair argument in favor of the contention of his client. But he is outside of his duty and his right when he appeals to prejudice irrelevant to the case. Properly, prejudice has no more sanction at the bar than on the bench. An advocate may make himself the alter ego of his client, and indulge in prejudice in his favor.
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Smith, J.
Suits were brought for Benjamin Hairston, a minor about eighteen years old, by-his father as his next friend, and by his father on his own account, to recover damages to compensate a personal injury caused by a freight car of appellant’s train running over and crushing one of the boy’s feet. The suits were consolidated and tried together, and judgments for substantial sums — which, however, appellant does not complain against as-excessive — were rendered in both cases.
The evidence in the case is sharply conflicting, and no attempt is made to reconcile it. According to the boy, his injury occurred under circumstances which warrant a finding of liability against the railroad company; while, according to the evidence of the company, there was no liability whatever. The cause appears to have been submitted to the jury under proper instructions, and under the well established rule that we do not pass upon questions of mere preponderance of the evidence, we would affirm the judgment of the court below as being sustained by legally sufficient evidence if only the question of the sufficiency of the evidence was involved. Seven witnesses testify as to the circumstances under which young Hairston was injured. According to his own testimony he had beaten his way on a freight train from his home in Morrilton to Russellville, and was returnifig home from Russellville in a box car, with two companions, all of whom were “beating their way.” Two brakemen, who were stationed in the caboose about fifteen cars behind the box car in which appellee and his companions took passage, observed their presence there, and one of these brakemen, a man named Young,- went to this car and ordered Hairston and his companions out of it. That this command was given him after he had told the brakeman that he had no money to pay him, but the brakeman, with profane language and menacing threats, compelled Trim to climb out of the door of the ear, and. while he was so doing the brakeman threw some object at him which struck him on the forehead and rendered him unconscious, and when he regained consciousness he found that he had fallen under the train and that his foot had been crushed. He admitted that he had at first explained his injury by stating that the brakeman had kicked him in the face and caused him to fall. The almost physical impossibility of this last statement is apparent when the relative situations of the parties is considered, the brakeman being on top of the car while Hairston was climbing out of the side door. Hairston made no attempt to reconcile his conflicting statements except to say that when he made his first explanation he was only talking; while at the trial he was “swearing now.”
According to the evidence of his two companions, Hairston debarked from the ear in safety, and was injured as he attempted to catch another , car. That Hairston was an expert in catching trains and had been seen frequently to catch trains running faster than this train was going at the time of his injury. These companions of Hairston are substantially corroborated by the brakemen, and also by a farmer and his son who witnessed the injury from their field where they were at work.
Some conflict appears in the evidence of witnesses for appellant as to whether Young’s head was lying towards the north or the south as he looked into the car where the boys were riding, and much importance is attached to this discrepancy by counsel, who insists that because of it the jury disregarded most of the evidence which was in conflict with that of Hairston.
(2) It is urged that error was committed in permitting a doctor who had examined Hairston’s injuries to testify without having been sworn. This question was raised for the first time after the verdict had been returned. Counsel explained the failure to raise the question earlier by stating that they were not advised of the fact sooner. The integrity of the trial cannot be thus defeated. The ease does not present the question of a witness who was permitted to testify after refusing to be sworn or of
the grant of permission to a witness to testify without having first taken the oath prescribed by law. It is a mere ease of inattention for which, no doubt, appellant is as much responsible as the appellee. At any rate, the error is-one which appellant could easily have avoided, and it is, therefore, one of which it is now in no position to complain. Similar questions have been raised in regard to jurors who have been permitted to serve who did not possess the qualifications required by law, and in such cases it has been uniformly held that where no imposition was practiced, whereby the juror was permitted to serve, that complaint would not thereafter be heard when no effort had been made to elicit from the juror the facts from which his incompetency would have appeared. Brown v. St. L. I. M. & S. B. Co., 52 Ark. 120; James v. State, 68 Ark. 464; Casat v. State, 40 Ark. 515. We must so hold in regard to this witness.
(2) The record contains the following recital: “In his closing argument to the jury, A. S. Hays, one of the attorneys for the plaintiff, stated to the jury: ‘Gentlemen, Judge Bullock said we should all be honest. Yes, we ought to be. But I state to you that the defendant is not honest in this ease and is trying to avoid payment of its just liability. Now, in the Burriss case the railway company admitted its liability but denied the plaintiff was injured. In this case, it admits the injury but denies the liability. No, gentlemen, the railway company don’t admit liability and injury both in the same ease.’ ” Whereupon the attorney for the appellant objected to the above statement, when Mr. Hays said: “I am making this statement in answer to Judge Bullock’s remarks a while ago about honesty of the parties.” An objection was thereupon overruled by the court. Whereupon Mr. Hays turned to the attorney for the defendant company and in a loud voice so that the jury could hear his remarks said: “Write it out; put it in the record. I stand upon the statement.” Counsel for appellant at the time objected to this statement and asked the court to exclude it, which request was by the court overruled, and exceptions were duly saved. The Burriss case to which reference was made was a personal injury ease against the appellant company, and at the time the remarks quoted were made the jury in that ease was still engaged in their deliberations. 1
Counsel for appellant insists that this improper argument was responsible for the verdict of the jury, and because of it the jury did not decide the case in accordance with the overwhelming preponderance of the evidence. No question arises of tener upon appeals to this court than that of some alleged improper argument. We have frequently announced the correct policy to be pursued by the trial courts in such cases, and have also frequently stated our own policy in such matters. The difficulty does not lie in defining the rule to be^pursued in such cases, but is found in applying that rule to the facts and circumstances of the particular case. In 2 R. C. L. 425, it is said:
“It is the unquestionable privilege of counsel to indulge in all fair argument in favor of the contention of his client. But he is outside of his duty and his right when he appeals to prejudice irrelevant to the case. Properly, prejudice has no more sanction at the bar than on the bench. An advocate may make himself the alter ego of his client, and indulge in prejudice in his favor. He may even share his client’s prejudices against his adversary, as far as they rest on the facts in his case. But he has neither duty nor right to appeal to prejudices, just or unjust, against his adversary, dehors the very ease he has to try. The fullest freedom of speech within the duty of his profession should be accorded to counsel, but it is license, not freedom of speech, to travel out of the record, basing his argument on facts not appearing, and appealing to prejudices irrelevant to the case and outside of the proof. ****** Where the admonition of the court does not prove sufficient to prevent improper and dangerous appeals to the prejudice of jurors, it becomes necessary rigidly to enforce the general rule that requires a reversal whenever the error is raised by a proper exception. ’ ’
A very clear statement of the duty of the appellate court when reviewing the proceedings in the trial court is found in the opinion in the case of Kansas City Sou. Ry. Co. v. Murphy, 74 Ark. 259, where Chief Justice Hilí, speaking for the court, said:
“When the ruling of the court is presented to the ■ appellate court in proper manner, then it is the duty of the appellate court to look to the remarks, and weigh their probable effect upon the issues; then to the action of the trial court in dealing with them; and if the trial court has not properly eliminated their sinister effect, and they seem to have created prejudice, and likely produce a verdict not otherwise obtainable, then the appellate court should reverse. However, a wide range of discretion must be allowed the circuit judges in dealing with the . subject, for they can best determine at the time the effect of unwarranted argument; but that discretion is not an arbitrary one, but that sound judicial discretion the exercise of which is a matter of review. There is, however, a class of cases which present argument and remarks so flagrantly prejudicial, or counsel may be so persistent in their impropriety, that the commendable efforts of the trial judge to eradicate the evil effects of them will be unavailing. In such event, then, a new trial is the only way to remove the prejudice, notwithstanding the judge may have reprimanded, or even fined, the offending attorney, and positively and emphatically instructed the jury to disregard the prejudicial statements. In the final analysis, the reversal rests upon an undue advantage having been secured by argument which has worked a prejudice to the losing party not warranted by the law and facts of the case. In the one class of cases the reversal rests upon the abuse of the discretion of the trial judge in not confining the argument within its legitimate channel, and not properly, instructing upon it or sufficiently reprimanding or punishing the offending attorney; and in the other or exceptional class rests upon the extremely harmful nature of the remarks which cannot be cured other than in a new trial upon the merits of the case freed of extraneous prejudice.”
The rule thus stated has since been frequently approved and reversals or affirmances have followed according to the effect of its application to the particular cases to which it was applied.
Appellees attempt to justify the argument of Mr. Hays upon the ground that it was invited error. It is said that Judge Bullock, in his argument for appellant, had erroneously injected into the case the.question of Hairston’s good faith and honesty, and that the argu-' ment was not, therefore, prejudicial, even though it was erroneous. But we do not agree that this is a ease of invited error. The good faith and honesty of Hairston was raised by the evidence and was a proper subject to be considered by the jury in determining the weight to be given his evidence. By his own admission he had beaten his way to Russellville and was beating his way back on his return. He had testified to the material circumstances under which he sustained his injury and had admitted that his sworn statement conflicted with his previous unsworn explanation. The counsel was, therefore, within the record in recounting these circumstances as bearing on the witness’ credibility. And this argument did- not warrant counsel in stating that railroads never admitted injury and liability in the same case, and are not honest in their defense of claims and suits against them. The statement was not a proper one to make, even though it was true, and we know from official reports that the railroads do admit liability in many cases against them and that a considerable portion of the operating expenses of the railroads of the country is- incurred in discharging claims of various Mnds, some with and others without litigation. The finding of the jury in this case on the question of the preponderance of the evidence should not have been influenced by any consideration of the general policy of the railroad company in regard to other claims, yet the objection to the argument was overruled and counsel was permitted to say that he stood upon that argument.
It was improper, and in view of the closeness of the case, may have turned the scale in appellee’s favor. And we, therefore, reverse the judgment.