Appeal, No. 27, Jan. T., 1952, from judgment of Court of Common Pleas of Carbon County, Oct. T., 1948, No. 78, in case of Emedio Narciso et ux. v. Mauch Chunk Township. Judgment reversed.
Martin H. Philip, with him Philip & Philip, for appellants.
Albert H. Heimbach, for appellee.
Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
On the night of March 19, 1947, Mary Narciso stepped into a hole in a public street in Mauch Chunk Township, Carbon County, and received serious and painful injuries. She and her husband, Emedio Narciso, brought this suit against the township to recover compensation. At the trial they produced evidence which, if believed by the jury, established negligence. Defendant, on the other hand, sought to show that there was sufficient light for wife-plaintiff to have
seen the hole and avoided it had she exercised reasonable care. On these issues the case was submitted to the jury which returned a verdict for defendant. Following the denial of a motion for new trial and the entry of judgment on the verdict, plaintiffs appealed.
Two issues are raised by the appeal. The first concerns the refusal of the trial judge to affirm a point for charge. No exception was taken to that ruling and it is, therefore, not properly before us for review: Gross v. Clapper, 369 Pa. 348, 85 A.2d 618.
The second point, however, raises a serious question as to the propriety of certain remarks by counsel for defendant in his closing address to the jury. In that speech counsel admittedly stated that the suit in reality was against the taxpayers of the township and not against the township itself. It is plaintiff's contention that this remark was so improper and prejudicial that it was likely to appeal to the passions and prejudices of the jury that a new trial should be granted.
It is well established that any statements by counsel, not based on evidence, which tend to influence the jury in resolving the issues before them solely by an appeal to passion and prejudice are improper and will not be countenanced. As we have stated on many occasions: "... a verdict obtained by incorrect statements or unfair argument or by an appeal to passion or prejudice stands on but little higher ground than one obtained by false testimony": Saxton v. Pittsburg Railrways Co., 219 Pa. 492, 495, 68 A. 1022; Kelly v. Scranton Railway Co., 270 Pa. 77, 79, 112 A. 748; Mittleman v. Bartikowsky, 283 Pa. 485, 486, 129 A. 566; Olsavsky v. Bamford, 363 Pa. 47, 50, 68 A.2d 594.
This Court is, of course, well aware that occasionally, in the heat of trial, counsel may make a statement which is not ...