Appeal from an order denying defendant's motion for a new trial in a personal injury action.
Plaintiff, a United States railway mail clerk, suffered personal injuries while performing his duties on a mail car of one of defendant's passenger trains which collided with a freight train near Cray, Minnesota, on June 14, 1951. The collision caused plaintiff to be thrown to the floor of the mail car. As a result he suffered an abrasion on his left forearm and, according to plaintiff's own testimony,
At the beginning of the trial, the defendant admitted its own negligence to be the proximate cause of the train collision but expressly denied that plaintiff's hernia was caused by the accident and further denied any liability for damages. At the close of the evidence and before the jury had retired, defendant again made its position clear by its request for an appropriate instruction to the jury and also by making a motion in chambers for a directed verdict in its favor on the ground that there was no evidence to connect the hernia with the train collision. Immediately after the denial of defendant's motion, without giving counsel an opportunity to argue the case to the jury, the trial court proceeded to instruct the jury and, in the very first sentence of its charge, told the jurors that there would be no arguments by counsel and that the only function of the jury would be to determine the amount of plaintiff's damages. In the charge the court stated that damages awarded should cover the hernia.
The defendant moved for a new trial on the grounds, among others, that the damages awarded were gravely excessive, that the court had erred in denying its motion for an instruction that the hernia was not caused by the accident, and further that it had erred when the jury was instructed without first giving counsel an opportunity to argue the case to the jury. Defendant appeals from the order denying this motion.
We need consider only one issue, namely: If the trial court, without first giving the parties an opportunity to make their arguments to the jury, inadvertently proceeds to charge the jury and at the beginning of the charge informs the jurors that arguments by counsel are in effect unnecessary and will not be given, does prejudicial error result although at the close of the charge, and before the jury has retired, the trial court belatedly offers to permit arguments to be made and counsel decline to do so? This question must be answered in the affirmative. M.S.A. 546.11, which prescribes the order for the conduct of the jury trial, expressly provides:
"(4) When the evidence is concluded, unless the case be submitted by one side or both without argument, the defendant shall open and the plaintiff close the argument to the jury; * * *
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"(6) When the argument is closed the court may charge the jury."
The right of a litigant to have a fact issue argued orally to the jury is a fundamental one and not one dependent upon the sufferance of the trial judge.
A new trial is necessary because of such prejudicial error, and it will therefore be unnecessary to consider the other issues. The order appealed from is reversed.