(after stating the facts. (1) It is true that instruction No. 4, given at appellee’s request, did *518not comport with what he said the facts were, but the instruction correctly declared the law, and if the jury found the facts to be as they were there hypothetically stated, then appellee was entitled to a verdict. We think the court properly gave this instruction under the circumstances. The fact that appellee was drunk constituted no defense, if his presence was discovered in time to have avoided injuring him, or if, by keeping a constant lookout, his presence could have been so discovered.
The court gave numerous instructions declaring the law in conformity with the opinion of this court in the case of Russell v. St. Louis S. W. Ry. Co., 113 Ark. 353, 168 S. W. 135.
(2) We think no error was committed in reading the lookout statute to the jury, although the better practice is for the court to interpret any statute, about the interpretation of which there is or may be a difference of opinion. But the facts in this case are unlike those in the case of Kansas City, F. S. & M. Ry. Co. v. Becker, 63 Ark. 477., which last mentioned case was reversed because of the action of the court in reading the fellow-servant statute, then in force, to the jury, that statute being what are now sections 6658 to 6660 of Kirby’s Digest. In the Becker case there wias ia sharp conflict over the construction of this statute, and in the opinion it was there said:
“The circuit court erred in giving the statutes, without explanation, as an instruction to the jury. They were susceptible of more than one interpretation, as shown by the contention of counsel in this ease, and parts of them were not applicable to the facts before the jury. It was the duty of the court, and not of the jury, to interpret the statutes. The instructions of the court should be susceptible of only one construction.”
The point there in controversy was whether an engineer iand fireman were ifellow-servants, and the court held that the reading of the statute was improper in the elucidation of that question, as it was capable of more than one construction. But no such question arises in *519this ease, for, while the lookout statute is susceptible of more than one construction, only one construction was given it at the trial.
(3) The majority of the court are of the opinion that, while the argument of appellee’s counsel was improper, under the circumstances, it did not constitute prejudicial error calling for the reversal of the case. It has been said in numerous decisions of this court that a certain discretion abides with the trial judge in rebuking improper arguments, and that a judgment will not be reversed because an improper argument was made, if it appears that no prejudice resulted therefrom. It is true the court overruled the objection made to this argument, but it must have appeared to the jury that, upon further reflection, the court had concluded that an erroneous ruling had been made upon this subject, and the court’s former ruling was reversed and the jury told that the argument was, in fact, an improper one, and should not be regarded by them. The court did finally rule with sufficient firmness on this question, but it is insisted that this ruling should have been made immediately, upon •objection being offered, and, further, that the argument itself was of such an incendiary character that no reproof of counsel could cure the harm resulting from its having 'been made.
A number of our oases, on the subject of improper arguments are reviewed in appellant’s brief and among those chiefly relied upon are the eases of Union Compress Co. v. Wolf, 63 Ark. 174, and German-American Insurance Co. v. Harper, 70 Ark. 305. In the first of these cases the attorney for appellee referred to the fact that appellant had taken a change of venue and offered to read the affidavit in support of the petition therefor, after he had been told by tthe court (that this was exceedingly improper. The argument was held prejudicial because, as the court there said, “where counsel persevere in saying things that are not pertinent to the issue and are prejudicial to the other party, the court in civil cases should see that they do not reap any benefits from such statements, even to the *520extent-of setting aside a-verdict in favor of the client of the attorney thus offending, if the court should deem that the prejudice can not otherwise he overcome.”
* In the insurance company case, supra, the judgment was reversed because appellee’s attorney made a statement of fact, not supported by any -evidence, concerning the integrity and veracity of -a material witness for appellant. The court held that under the circumstances the statement of counsel left an unfavorable impression on the jury, as to the veracity of the witness, which no admonition from the court could eradicate.
For similar reasons other cases have been reversed, for improper arguments, but in each of them it appears that the court either gave no directions to the jury to disregard the argument, or the argument itself was so prejudicial that no direction to the jury could have secured a fair trial, or that the direction which was given did not accomplish that purpose. Here the argument was n-ot in defiance of the court, nor did it question the veracity of 'any witness, and while it was highly improper and the trial court should have so held immediately, even though no objection had been made, yet it appears that the court did make a proper ruling upon the conclusion of the speech in which the language quoted was used. The record does not show whether this speech was concluded soon after this statement was made or not, but it does show that at its conclusion the court reversed its action, in overruling the objection, and made the ruling which should have been made earlier.
The- presumption is that the jury followed the directions of the court and the moderate verdict returned gives no indication to the contrary. The judgment is affirmed.