and attack. I cannot but help conclude that the belated references are without any substance in view of the heated nature of the trial and of the provocative actions of counsel.
The general rule in the Federal Courts has been that the remarks of counsel to the jury on the merits, to constitute reversible error, must be objected to at the time, be unwarranted by the pleadings and evidence, have a tendency to mislead or prejudice the jury, and be to more or less extent approved by the trial judge. Alabama G.S. Ry. Co. v. Carroll, 5 Cir., 84 F. 772, 784; Uhl v. Echols Transfer Co., 5 Cir., 238 F.2d 760.
Defendant counsel interrupted plaintiff counsel on three separate occasions in the course of his summation, but made no general objection at the close of the address. The objections were directed --
(a) At counsel's reference to defendant's vacillating efforts in going to trial.
(b) At counsel's comment on defendant witness's Vickers testimony as to inferences to be drawn as to the probability of plaintiff retaining his employment with defendant after the conclusion of this action.
(c) At counsel's computation of impairment of earning power predicated upon hypothetical percentages of disability as calculated in conjunction with the United States Life Tables, U.S. Dept. of Health, Education and Welfare.
In the first instance the court most meticulously admonished plaintiff's counsel to adhere strictly to evidence and inferences to be drawn therefrom in his closing argument to the jury. In the latter two instances the court overruled defendant's objections in view of the court's belief that plaintiff was entitled to argue the inferences to be drawn as to whether plaintiff would be returned to his job with the railroad after the case was concluded, which, indeed, was a crucial issue in the jury's determination of the degree of impairment of earning power based upon mortality tables and percentage of disability properly deducible from the evidence.
Admissibility of Evidence
The divers rulings on admissibility of evidence were predicated upon relevancy and the rules of evidence of the United States Court, and no purpose could be served in elaborating the basis and reasoning upon which each ruling was predicated. Suffice it to say, it is my considered judgment that the record supports the rulings of the court in each instance, or should error have been committed in any particular, no such error could have resulted, or did result in substantial prejudice to the defendant.
Conduct of Plaintiff's Counsel
I am satisfied that this court conducted the trial of this case with a sense of strict impartiality and fairness. A hotly contested case, as this one proved to be, inevitably aroused comment of the court or counsel, which isolated from context or devoid of the atmosphere or manner in which it was spoken may raise doubts of propriety. Nevertheless, no comment in this record when taken in the proper perspective and balance of the entire record could be deemed to have improperly influenced the jury. Goldstein v. United States, 8 Cir., 63 F.2d 609; Throckmorton v. St. Louis-San Francisco Ry. Co., 8 Cir., 179 F.2d 165.
Considered as a whole, without isolating or separating portions of the record, I feel that the record adequately presented the issues to the jury for its determination. Van Camp Sea Food Co. v. Nordyke, 9 Cir., 140 F.2d 902; certiorari denied 322 U.S. 760, 64 S. Ct. 1278, 88 L.Ed 1587; Commonwealth v. Cargill, 357 Pa. 510, 55 A.2d 373.
In a prolonged and protracted contest, too much is said and done about too little in the heat and hurry of a trial, for it all to be important. Things of no moment in their transpiring are not made momentous merely by making record of them. Therefore, though a trial judge is an administrator primarily charged with the just conduct of the trial, he may not ordinarily be put in error merely because an aberration from trial rules has occurred. It is the duty of counsel by objection to call such threatened or actual departure to the judge's attention, and invoke his corrective action, and, if overruled, to make it appear that prejudice has resulted.
Indeed, I am further cognizant of the rule that a trial judge may never abdicate his function, or surrender to counsel the conduct of the trial and that he must exercise his function to guide and control it. Glassine Paper Co. v. Shannon, 2 Cir., 238 F.2d 765.
It will serve no useful purpose for me to itemize and discuss seriatim the divers things said and done by plaintiff's counsel which defendant puts forward as grounds for new trial. Defendant advances the proposition that within the rule laid down and applied in Robinson v. Pennsylvania Ry. Co., 3 Cir., 214 F.2d 798, there was an entire course of reprehensible conduct which, permitting the case to get out of bounds, weighted the scales against the defendant and prejudiced a just result.
Upon a most complete and exhaustive review of the entire record, encompassing 1,736 pages, in the course of which I meticulously evaluated the summation address of plaintiff's counsel in the light of the evidence and inferences to be drawn therefrom which was produced by defendant in the course of trial, and further examining the record in the light thrown on it by the contentions and arguments of plaintiff and defendant and the principles of law herein enunciated, I must conclude that the record does not show that at any point or at any particular this court abdicated its function, surrendered to counsel the conduct of the trial, or in any other way permitted to prejudicial error to creep into and prevent justice in the case.
Defendant's motion for new trial will be refused.
An appropriate order is entered.