(53 Ind. App. 466) suspended over a sidewalk need not prove that (No. the company had actual notice of the broken wire at the place prior to the time of the ac-. cident. 8,005.) (Appellate Court of Indiana, Division No. 1. May 27, 1913.) [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. § 7. TRIAL ( 133*) — IMPROPER ARGUMENT OF COUNSEL-INSTRUCTIONS-EFFECT. 1. TRIAL (§ 296*)-INSTRUCTIONS-OMISSIONS 20.*] 2. TELEGRAPHS AND TELEPHONES (§ 15*)-IN- the presence of representatives of an insurance The misconduct of counsel in referring to company during the progress of the trial is cured by the court withdrawing the remarks from the jury and directing them not to consid§er them. A telephone company, maintaining a telephone system in the streets of a town, must exercise ordinary care to maintain its wires so as to prevent their becoming dangerous, but its duty is not absolute. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 9; Dec. Dig. § 15.*] 3. TRIAL (§ 296*)-INSTRUCTIONS-ERRORS IN ONE INSTRUCTION CURED BY ANOTHER "ABSOLUTE." The error in an instruction, in an action against a telephone company for injuries to a pedestrian coming in contact with a broken wire, that it is the absolute duty of the company to maintain its wires so as not to obstruct the use of the street or render it dangerous is not cured by a statement in the same instruction that, if it negligently failed to so maintain its wires, it was liable-the word "absolute" meaning free from every restriction; unconditional; determined; not merely provisional; irrevocable. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 705-713, 715, 716, 718; Dec. Dig. 8 296.* For other definitions, see Words and Phrases, vol. 1, p. 38; vol. 8, p. 7560.] 4. TELEGRAPHS AND TELEPHONES (§ 15*)-INJURIES FROM OPERATION CARE REQUIRED. A telegraph company is entitled to reasonable time in which to make necessary repairs in its wires rendering public travel dangerous before it is chargeable with negligence in failing to make proper repairs. [Ed. Note.-For other cases, see_Telegraphs and Telephones, Cent. Dig. § 9; Dec. Dig. § 15.*] 5. TELEGRAPHS AND TELEPHONES (§ 20*)-INJURIES FROM MAINTENANCE-INSTRUCTIONS. An instruction, in an action against a telephone company for injuries to a pedestrian coming in contact with a broken wire, that if the company received notice that any of its wires were down, it was its duty to investigate within a reasonable time, and if it was not diligent, it was guilty of negligence, was erroneous as leading the jury to believe that if the company had notice of the condition of the wires in any part of the town, it was charg ed with notice of the condition of the wire at the place of the accident, however remote it might be. [Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. 8 20.*] 6. TELEGRAPHIS AND TELEPHONES (§ 20*)-INJURIES FROM MAINTENANCE-CARE REQUIR ED. One suing a telephone company for injuries by coming in contact with a broken wire [Ed. Note.-For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.*1 Appeal from Circuit Court, Clark County; Telephone Company. From a judgment for Reversed and M. Z. Stannard and Jonas G. Howard, both of Jeffersonville, for appellant. L. A. Douglass and S. G. Wilkinson, both of Jeffersonville, for appellee. SHEA, J. Appellee brought this action to recover damages from appellant for injuries alleged to have been sustained by reason of its negligence in permitting a wire extending between certain of its poles to hang down. with the end of which appellee came in contact and was struck in the left eye. A demurrer to the complaint in one paragraph was overruled. Answer in general denial. A trial of the issues formed resulted in a lant's motion for a new trial was overruled, verdict and a judgment for appellee. Appeland this ruling is assigned as error. Briefly, the facts as shown by the complaint are that appellant is a telephone corporation engaged in operating a telephone System between various points in Indiana, among them the town of Sellersburg, Clark county, Ind., where for some years prior to February 10, 1903, it had conducted its business and maintained an exchange; that in the conduct of its business appellant had erected in said town a large number of poles, on which were strung metal wires, by means of which it transmitted messages. Some of these poles were located on Maple street, an improved public highway and street in a thickly settled part of the town, which was much frequented and traveled by the public generally. Several days previous to the date of the injury complained of one of the metal wires attached to a pole on Maple street had broken down, and hung over the sidewalk on the west side of the street, the end of it extending to about five feet of the surface of the sidewalk; that appellant knew the wire was down and so hanging for as much as three days prior to the happening of the injury, or with reasonable diligence might have known of this condition, and with this knowl For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes edge carelessly and negligently failed to remove the wire, and permitted it to so remain until after appellee was injured; that the end of the metal wire was broken off at an angle, and the edge was very sharp at the point of breakage; that while appellee, on February 3, 1910, was lawfully using and passing along Maple street, where the wire was hanging down, said wire, without any fault or negligence on his part, came in contact with his left eye, striking the eyeball, and severely cutting and lacerating it. Under the motion for a new trial the errors presented are the giving of instructions Nos. 1, 3, 8, and 13, requested by appellee, and the misconduct of counsel in argument. Instruction No. 1 sets out numerous facts upon which it bases a statement that appellee would be entitled to recover if all the material allegations of the complaint are proved. It is urged that the defense of contributory negligence was at issue, and that, even though the averments of the complaint are proved, the plaintiff would not be entitled to recover if contributory negligence is also shown, that the language is therefore misleading and harmful, and that the averments of the complaint, if proven, simply make a prima facie case. Instruction No. 8, in addition to other infirmities which will be pointed out, also states that if the material allegations of the complaint "have been proved to your satisfaction, your verdict should be for the plaintiff"; likewise instruction No. 13 ignores the defense of contributory negligence, and singles out and gives prominence to certain phases of the evidence, which, it is urged, invades the province of the jury. [1] It has been held by this court, as well as the Supreme Court, that where instructions are given stating that plaintiff is entitled to recover upon proof of the allegations of the complaint, they may be cured by other instructions which fully cover the defense of contributory negligence. If there were no other infirmities in the instructions, the court would be inclined to overlook this omission, in view of the fact that there are other instructions which fully cover the defense of contributory negligence. New Castle Bridge Co. v. Doty, 168 Ind. 259, 79 N. E. 485; McIntyre v. Orner, 166 Ind. 57, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359, 8 Ann. Cas. 1087; Indianapolis Traction, etc., Co. v. Smith, 38 Ind. App. 160, 77 N. E. 1140. [2, 3] But there are other infirmities in the instructions which we feel cannot receive the sanction of this court. By instruction 3 the jury are told that: "It was the absolute duty of defendant to so use and maintain its wires along and over said streets and public places so as not to obstruct the use of the street by the public or render it dangerous for use." This instruction makes it, as the language shows, the absolute duty of appellant to have its wires at all times in such condition that the streets could be used without danger to the public. It is the duty of appellant to use ordinary care to use and maintain its wires along and over the streets so as to prevent their becoming dangerous, but this duty is not absolute. Terre Haute, etc., Traction Co. v. Latham, 101 N. E. 746; Dooley v. Town of Sullivan, 112 Ind. 451, 14 N. E. 566, 2 Am. St. Rep. 209; Indiana Natural Gas Co. v. Vauble, 31 Ind. App. 370, 68 N. E. 195; Consolidated Stone Co. v. Summit, 152 Ind. 297, 53 N. E. 235. Appellee's able counsel insist that this language is explained and made harmless by the following language used in the same instruction: "If it negligently failed to so maintain its wires, then it must respond in damages"-but this court is not able to so construe the language. In the case of Terre Haute, etc., Traction Co. v. Latham, it is said: "The instruction imposes the absolute duty on appellant to maintain the highway with reference to its tracks in such a condition as to be reasonably safe for use, whereas the law exacts only reasonable care and skill in this regard. The instruction was therefore erroneous." [4] "Absolute" is defined in the Century Dictionary as "free from every restriction;" "unconditional;" "fixed;" "determined;" "not merely provisional;" "irrevocable." In Cumberland Telephone & Telegraph Co. v. Pierson, 170 Ind. 543, 84 N. E. 1088, the court in passing upon the sufficiency of a complaint uses this language: "Appellant was entitled under the law to a reasonable time in which to make necessary repairs, after obtaining actual knowledge or constructive notice of the alleged defect, before responsibility for neglect to make proper repairs could attach." This correctly states appellant's duty, and is inconsistent with the statement in the instruction that it was appellant's absolute duty to keep its wires safe for public use, which took no account of delays in notice of unavoidable accidents. This instruction is therefore erroneous. [5, 6] Instruction No. 8 contains this language: "It is not necessary that the evidence establish the fact that defendant had actual notice of the existence of the broken and hanging wire at said place prior to the time of the accident, in order to render it liable in damages in this case." So much of the instruction states the law correctly; then follows: "If it received notice that any of its wires were down in the town of Sellersburg, it was its duty to investigate the report and notice within a reasonable time, and to be diligent in making said investigation; and, if the evidence shows you that after receiving said information the company was not diligent in investigating the notice, and discovering the condition of the wire, and that if it had been diligent in making said investigation it would have learned of the location and situation of the broken and hanging wire in time to have removed it before the accident to plaintiff, then I instruct you that you have the right to find that defendant was SIGNMENT OF ERRORS. Since the appellant's assignment of errors constitutes his complaint on appeal, the court only acquires jurisdiction over the parties whose names appear therein. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2954-2964; Dec. Dig. § 1129.*] guilty of negligence in permitting the said | 3. CRIMINAL LAW ( 1129*)-APPEAL—ASwire to be there at the time of the accident, and if the other material allegations of the complaint have been proved to your satisfaction, your verdict should be for the plaintiff." The jury might infer from this instruction that if appellant had had notice of the condition of the wires in any part of the town of Sellersburg, they would be charged with notice of the condition of the wire at the point where appellee was injured, however remote it might be. The instruction in this respect is erroneous, as being misleading and confusing to the minds of the jury. In view of the errors pointed out in the instructions, the court is not able to say they were harmless. [7] The misconduct on the part of counsel in referring to the presence of some representative of an insurance company, during the progress of the trial, was reprehensible, and the court rightly withdrew the remarks from the jury, and instructed the jury not to consider them, so that any error which might be predicated on such misconduct was cured. The theory of the law in this state is that any harm that may come from such misconduct is cured by the court's instructions. Appellant's learned counsel has cited many authorities from other states which support his earnest contention that the alleged misconduct is sufficiently harmful to warrant the court in reversing the cause. This, however, is not the rule in Indiana, and this court is bound by the rule often announced by the Supreme Court. Smith v. State, 165 Ind. 180, 74 N. E. 983, and authorities cited. See, also, Southern R. Co. v. Bulleit, 40 Ind. App. 457, 82 N. E. 474; Southern Ind. R. Co. v. Davis, 32 Ind. App. 569. 69 N. E. 550. For the errors pointed out, this cause is reversed and a new trial ordered. Judgment reversed. (53 Ind. App. 488) COLLINS et al. v. STATE. (No. 8,532.) (Appellate Court of Indiana, Division No. 2. May 29, 1913.) 1. CRIMINAL LAW (§ 1129*)-ASSIGNMENT OF ERRORS-NAMES OF PARTIES. Appeal from Juvenile Court, Marion County; Newton M. Taylor, Judge. Samuel Collins was convicted of failing to send his minor son, of school age, residing in Center Township, to school, and he appeals. Dismissed. W. S. Henry, of Indianapolis, for appellant. Thomas M. Honan and Thomas H. Branaman, both of Indianapolis, for the State. ADAMS, C. J. [1] The amended assignment of errors in this appeal is entitled, "State of Indiana v. Samuel Collins et al." This is an insufficient assignment. Rule 6 of this court (55 N. E. iv) requires that "the assignment of errors shall contain the full names of all the parties." This rule was not observed, nor was the general rule of appellate procedure, which requires the names of appellants to be written before the abbreviation "v.," and the names of appellees after said abbreviation, instead of the reverse, as was done in this case. Barnett v. Bromley Mfg. Co., 149 Ind. 606, 49 N. E. 160. A cause cannot be determined on its mer its unless the parties to the judgment ap- 176, 45 N. E. 64; Barnett v. Bromley Mfg. Co., supra; [2] The assignment of errors in this court constitutes the appellant's complaint, and the court only acquires jurisdiction over the parties whose names appear therein. Snyder v. State ex rel., 124 Ind. 335, 24 N. E. 891; Bozeman v. Cale, 139 Ind. 187, 35 N. E. 828; Hutts v. Martin, 141 Ind. 701, 41 N. E. 329; Thornton's Ind. Practice Code, § 655, note 1; Elliott's App. Proc. §§ 300, 322; Ewbanks' Manual, §§ 126, 226. The appeal is dismissed. An assignment of errors entitled, "State of Indiana v. Samuel Collins and others,' (54 Ind. App. 472) was not a sufficient compliance with Court of WINONA INTERURBAN RY. CO. v. WILAppeals rule 6 (55 N. E. iv), requiring that the assignment of errors should contain the full names of all the parties. LIARD. (No. 7,952.)1 (Appellate Court of Indiana, Division No. 2. May 27, 1913.) [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2954-2964; Dec. Dig. 81. CARRIERS (§ 318*)-INJURIES TO PASSEN1129.*] 2. CRIMINAL LAW (§ 1129*)—APPEAL-TITLE [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2954-2964; Dec. Dig. § 1129.*] GER-EVIDENCE-OPERATION OF CAR. In an action for injuries inflicted by an interurban railway conductor while a passenger was alighting from the car, circumstantial evidence held sufficient to warrant the jury in finding that the car was operated by the defendant, where that fact was not controverted at the trial. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Rehearing denied. Transfer to Supreme Court denied. 2. CARRIERS (§ 306*)-INJURIES TO PASSEN- [appellant in this court denied that it was GERS-COMPANY LIABLE. In such an action it is immaterial whether the defendant owned the car or the track, if it was in fact operating the car. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1249-1251; Dec. Dig. § 306.*] 3. NEW TRIAL (§§ 102, 104, 108*)-NEWLY DISCOVERED EVIDENCE-DILIGENCE-CUMULATIVE EVIDENCE. A motion for a new trial for newly discovered evidence which is merely cumulative and such that there is no probability it would produce a different result, and which does not disclose sufficient diligence in attempting to obtain the evidence before trial, is properly denied. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 207, 210-214, 218-220, 226-228; Dec. Dig. §§ 102, 104, 108.*] 4. DAMAGES (§ 132*)-EXCESSIVE DAMAGES. [Ed. Note. For other cases, see Damages, operating a car, but it cites the case of Citizens' St. R. Co. v. Stockdell, 159 Ind. 25, 62 N. E. 21, as supporting its insistence that the evidence failed to show that appellant was operating the car; such proof being an essential part of plaintiff's case. We cannot agree with appellant's contention as to the insufficiency of the evidence introduced at the trial. The writer of this opinion is inclined to prefer the reasoning of the dissenting opinion of Judge Hadley in the Stockdell Case to that of the prevailing opinion. But, be that as it may, the prevailing opinion is a binding precedent which must be followed by this court, and which, we believe, supports the affirmance of the present case rather than its reversal. The evidence which tends to show that appellant was operating the car on which appellee was injured is much more forceful than the It is not evidence in the Stockdell Case. necessary for witnesses to testify directly to a fact in order that a jury may find it to exist. "A jury may be justified in finding a fact to be true in several ways: First, the fact may be admitted; second, the court may take judicial notice of such fact; third. the evidence may directly prove the fact; Action by Inez Williard against the Winona Interurban Railway Company. Judgment and, fourth, the fact may be rightly and reafor plaintiff, and defendant appeals. Afsonably inferred by the jury from other facts firmed. which are either admitted, or proved by the evidence, or taken notice of judicially by Henry v. Epstein (Ind. App. Frazer & Frazer, of Warsaw, for appel- lant. pellee. IBACH, J. Appellee recovered a judgment for $4,874 for personal injuries sustained by being thrown or pulled from appellant's interurban car by its conductor, while appellee was in the act of alighting from said car. Appellant assigned error in overruling the demurrer to the complaint, and in giving a certain instruction to the jury; but we find no error in either action of the trial court, and, as appellant's counsel admitted in argument that it did not rely for reversal upon either of these assignments, we do not deem it necessary to refer to them further. [1] Appellant's strongest contention is that the evidence fails to show that it owned or operated an interurban railroad between the cities of Warsaw and Goshen, Ind., or that the car upon which plaintiff took passage was being operated by defendant at the time of the accident complained of, or that the conductor who injured her was in its employ at the time of the accident. 1911) 95 N. E. 277. the court." Conductor Eiler, who was identified as in charge of the car on which appellee claimed to have been hurt, and who appellant admits was in charge of such car, testified that he was in the employ of the "Winona Interurban Company" as a passenger conductor at the time of the trial, that he was a passenger conductor for appellant in October, 1907, and took out car "No. 50, from Goshen at about 5:30 p. m. October 13, 1907. This was the car upon which appellee, her husband, mother, and little son had taken passage at Elkhart, and upon alighting from it at Milford Junction, between Goshen and Warsaw, according to the testimony of her witnesses, conductor Eiler took hold of appellee's arm in such a manner as to throw her down against the car step, severely bruising and injuring her, but not so much at the time as to prevent her walking away from the station by leaning upon her husband. Appellant's defense was to deny the accident. Eiler testified that he did not take appellee's arm and jerk her off the car, and It is not directly in evidence that appel- several witnesses who were passengers on lant was operating the car on which appellee the car testified that they saw no such action was injured. That fact was not in dispute on his part, and did not see appellee injured. in the trial below, and seems to have been Appellant set up no claim at the trial that assumed and taken for granted, as a fact it was not operating the car. But it here about which no evidence was needed, and as claims that, even though it appears that a impliedly admitted by appellant. Nor has passenger conductor in its employ in the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes course of his duties as a passenger conductor was in charge of the car, yet it does not appear that appellant owned or was operating the car, or was operating an interurban road from Warsaw to Goshen. However, it was shown that the conductor took charge of the car at Goshen and appellee got off at Milford Junction, on the road to Warsaw. Where there is direct evidence that a conductor in the course of his employment as a passenger conductor of appellant took a certain car over a certain road, and in the course of his. duties as such negligently injured a woman passenger who was alighting, such evidence is sufficient for the jury to find that appellant was operating the car over the road, at least in the absence of controverting evidence, and that it was liable for such act of its conductor. [2] It is immaterial whether appellant owned the car or the track, for neither fact would have any bearing upon its liability. Its liability to passengers is sufficiently shown from the fact that it was operating the car. From all the evidence, when there was not even a word of testimony indicating, or tending to indicate, that any person or company other than appellant was operating the car, the jury was abundantly justified in finding that appellant was operating it. Appellant appeared and defended the action, and based no part of its defense upon the theory that it was not operating the car, and, in fact, impliedly admitted its operation. Appellant could at once have terminated the trial by proof that it was not operating the car on which the accident happened and that the conductor was not in its employ, but instead it spent, as was shown by the evidence, much time in seeking witnesses who were passengers on the car, and who testified that they did not see any accident. Its conductor, in answer to questions by appellant's counsel, testified that he was in appellant's employ on the day of the accident, in charge of the car on which the accident was claimed to have occurred. We quote the following words from the case of Evansville, etc., R. Co. v. Snapp, 61 There is much further evidence, which | Ind. 309, as applicable here. This case has would justify the jury in finding that appel- never been overruled or disapproved, and is lant was operating the car, and it seems to a binding precedent. "In the case at bar, us that it owned the tracks. Throughout the there was no direct or positive evidence adtestimony of the witnesses there are many duced upon the trial that the appellant was references to the "company" which could the owner of or operated the railroad upon only be understood by the jury as referring which the appellee's mare was run over to appellant. Appellant's witness May, who and killed. The evidence showed that the was a passenger on the car, stated that "a mare was run over and killed on the Evansclaim agent of defendant company" had talk- ville & Crawfordsville Railroad. The ap ed with him about the accident a week or so pellant, the Evansville & Crawfordsville after its occurrence. This agent, referred to Railroad Company, was sued for the killing as the "company's agent," also the "com- of said mare on its railroad, and appeared to, pany's detective," and the "attorney for the and was there before the jury, defending the company," had talked with several witnesses. action. There was not a particle of evidence Witness Williard, appellee's husband, testi- adduced upon the trial tending to show that fied that he had applied for a job with the the railroad in question was owned or operat"Winona Company," and that he knew of an ed by any other person or corporation than official of that "interurban company," Mr. appellant; but it seems to have been assumSullivan, who was on the car. Other wit- ed and taken for granted, as a fact about nesses testified that Mr. Sullivan, an official which no evidence was needed, that the railof the company, or passenger agent, went road was owned and operated by the appel back with the conductor to talk with wit- lant at the time the appellee's mare was ness Martin, a passenger, with whom the run over and killed thereon. Under such circonductor had a dispute about his fare. Wit- cumstances and the evidence on the trial, it ness Martin testified that at Milford, the sta. seems to us that the jury trying the cause tion where he got off the car, the "Winona might have fairly and reasonably inferred people have electric lights at the station." and found that the appellant owned and opWitness Sargent, "ticket agent for the Wi-erated the railroad in question at the time nona at Milford" at the time of the accident, another passenger, testified that he warned the conductor to look out for trouble with Martin, and, in answer to a question whether he did this because he was an employé of the company, he replied, "Not scarcely that." Witness Van Ness, express agent of the United States Express Company at Milford Junction, testified that his office was "on the south side of the B. & O. tracks and east of the Winona tracks at Milford Junction," and that he got on the car on the express office side, always taking that car every evening. the appellee's mare was killed thereon; and especially so, in the absence of any evidence whatever from which it could possibly be inferred that such railroad was owned or operated by any other person or corporation than the appellant. We think therefore that we ought not to disturb the verdict of the jury in this case for the want of direct and positive evidence in support of the averment in the complaint that the appellant owned and operated said railroad at the time the appellee's mare was run over and killed thereon. In other words, as to this point, as it seems to us, the verdict of the jury in this |