last clause of this instruction "does not con- | tory, and is to be interpreted literally ac tain a single proposition of law, but only declarations of supposed facts, which common experience had perhaps established as true. The teachings of experience on questions of fact are not, however, doctrines of law, which may be announced as such from the bench, nor yet are they matters of proof to be shown as other facts in the case. They may well enter into the arguments of attorneys, one side claiming that experience teaches one thing, and the other side asserting another conclusion, but the jury, not the judge, is the arbiter of such contentions, as of all questions of fact." Garfield v. State, 74 Ind. 60. See, also, Finch v. Bergins, 89 Ind. 360; Lewis v. Christie, 99 Ind. 377; Indianapolis St. R. Co. v. Taylor, 164 Ind. 155, 72 N. E. 1045; Muncie Pulp Co. v. Keesling, 166 Ind. 479, 76 N. E. 1002. [5] Counsel for appellant have cited some cases from other states in which the judge has been permitted to instruct the jury as to the comparative weight of positive and negative evidence, but in Indiana the jury may not be told that positive evidence is to be given more weight than negative evidence. Ohio, etc., R. Co. v. Buck, 130 Ind. 300, 30 N. E. 19. In the case at bar the testimony of appellee's witnesses that the whistle was not blown for the crossing and the gong was not sounded, is not all negative evidence, for some of these witnesses were looking at the train and had their attention directed to it, and one at least was listening particularly to hear the crossing whistle, for reasons connected with his business. Such evidence is positive evidence. New York, etc., R. Co. v. Robbins, 38 Ind. App. 172, 76 N. E. 804. [6] Appellant contends that the court erred in overruling its motion to strike out the answers to certain questions in the deposition of witness Joseph Steirwalt. Though appellant's motion appears in the record, it is not in the bill of exceptions, and appellee cites Smith v. Kyler, 74 Ind. 579, to the effect that a motion to suppress depositions or parts thereof is no part of the record unless made so by bill of exceptions. Appellant claims that under section 3 of an act of April 23, 1903 (Laws 1903, c. 193) § 663, Burns' Statutes 1908, which was passed after the decision in the Kyler Case, and which provides that certain motions shall be a part of the record without being incorporated in a bill of exceptions, their motion is properly in the record. Section 2 of the Act of April 23, 1903, supra (section 662, Burns' Statutes 1908), provides "that every motion to insert new matter or to strike out any part or parts of any pleading, deposition, report, or other paper in the cause shall be made in writing and shall set forth the words sought to be inserted or stricken out." It has been held by the Supreme Court in Crystal Ice Co. v. Morris, 160 Ind. 651, 67 N. E. 502, and by this court in Lindley v. Kemp, 38 Ind. App. cording to its terms, which are that such motion must be in writing, and must set forth the words sought to be inserted or stricken out, and that it is not sufficient to indicate these words by showing in what lines and pages of a pleading or other paper that may be found. Under this section, the motions made by appellant to strike out the answers to certain questions in the deposition of Joseph Steirwalt are fatally defective because they do not set forth the words sought to be stricken out, and because it appears that they were made orally, for there is no record of their being filed as written motions. Had written motions setting forth the words sought to be stricken out, in compliance with section 662, supra, been filed in the case, they would have been properly in the record without being included in a bill of exceptions, under section 663, supra, but since appellant's motions were not made in the manner prescribed, error cannot be predicated of the court's ruling thereon. But we may add that having considered the evidence sought to be stricken out, in our opinion it was properly admitted. [7] It is also contended that the evidence does not support the verdict. The evidence discloses that at the place of accident the railroad runs in a northeast and southwest course, on a straight line for some distance southwest of the crossing, and making ap angle of 67 degrees with the north and south street upon which Payton was traveling. Payton when struck was driving north along this street in a farm wagon drawn by two horses, and the train which struck him was coming from the southwest. At this crossing there were three tracks, a main track, passing track, and side track. The train which struck Payton was running on the main track, the one farthest to the northwest. At the time of the accident a west-bound freight train was standing on the middle track, with the headlight burning and thrown toward the crossing, and its engine was emitting steam and otherwise making a noise. There is evidence to the effect that appellant's train was moving at the rate of 40 miles per hour when it passed the crossing, and that no whistle was sounded or gong rung for the crossing. One of the heavy horses attached to the wagon was carried by the train 150 to 200 feet from the crossing, and the other from 40 to 60 feet. The witness who was in company with Payton at the time of the ac cident testifies, and this is not contradicted, that when about 50 feet from the crossing, the team was stopped and both looked and listened for an approaching train. At that time no train was in sight, and none could be heard. From that point they proceeded in a walk toward the crossing, and both continued to look and listen, but did not see or hear any indication of an approaching train. Between the point where they first stopped and the crossing it appears that there were NEW TRIAL-BRIEFS. Errors assigned in overruling a motion for proaching train might have been seen some | 2. APPEAL AND ERROR (§ 757*)—MOTION for the presence of box cars on the siding, piles of lumber, ties, tomato crates, and other ob- structions. The freight train to the east at- tracted their attention somewhat, they looked We shall not review the evidence further. The finding of the jury by its verdict that defendant was negligent in the operation of its train at the public crossing where the in- jury took place is amply supported by the evidence of many witnesses. As to whether there was contributory negligence on the part of Payton, the evidence is not so clear. However, it does not necessarily follow that because at some points, while traveling the distance from the place where Payton stop- ped to the track where he was struck, the train may have been in view of a person looking for it, that it was actually seen by him, or that he is chargeable with having seen it, there being nothing in the record to indicate that when he was passing any of such open places the train was in the range of his vision. There were other points as appears from the evidence at which it could not have been seen on account of numerous obstructions. And because the questions of fact in this case may be surrounded with [8] Their determination of these questions controls this court where there is some evi- [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] 3. APPEAL AND ERROR (§ 757*)-MOTION FOR for on a ground depending on the evidence can- [Ed. Note.-For other cases, see Appeal and Appellant's brief was not in proper form, where it contained no statement of propositions or points supported by authority; the points [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3096; Dec. Dig. § 761.*1 5. APPEAL AND ERROR (§ 766*) — IMPROPER Appellee's brief, calling attention to de- more than three months before the expiration of the time allowed for appeal, appellant hav- ing failed to withdraw his appeal as a term appeal and refile the transcript as a vacation his brief, the judgment would be affirmed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3101; Dec. Dig. § 766.*] Appeal from Circuit Court, Henry Coun- Action by Rebecca Hartman Brown & Beard, for appellant. Beach & IBACH, P. J. This action was originally [1] Appellant's brief fails in very many [2, 3] Error is assigned in overruling a mo- [4] There is no separate statement of the argument. There are other defects lant's brief, but does not supply the omis- | extending through the United States and sions. [5] Appellant's motion for new trial was overruled on July 17, 1909, and appellee's brief was filed on March 4, 1910, more than three months before the expiration of the year allowed for appeal, and appellant might have withdrawn his appeal as a term time appeal, and refiled the transcript in a vacation appeal, and thus have had opportunity to correct his brief, but this he failed entirely to do, choosing to rely upon the original brief. When a party fails to comply with the rules of this court, he is held to have waived the error if any was committed. Ellison v. Ryan, 43 Ind. App. 610, 87 N. E. 244; Tisdale v. State, 167 Ind. 83, 78 N. E. 324. However, as appellant's attorneys admit inexperience, but say that they honestly tried to comply with the rules, we have read their briefs and appellee's, have considered the points attempted to be raised, and have looked into the record sufficiently to be of the opinion that a right result was reached below. The judgment is affirmed. -RELIEF. A telegraph company maintaining telegraph lines and electric appliances on its right of way and on highways for its business may not sue a railroad company operating a line of electric railroad on its adjacent right of way to restrain the operation of the line because of currents of electricity used by the railroad company interfere with the business of the telegraph company, in the absence of any charge that the railroad company is guilty of negligence, unskillfulness, or malice in the construction and operation of its line. [Ed. Note. For other cases, see Electricity, Cent. Dig. § 3; Dec. Dig. § 7.*] Appeal from Superior Court, La Porte County; Harry B. Tuthill, Judge. Action by the Postal Telegraph & Cable Company of Indiana against the Chicago, Lake Shore & South Bend Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed. John B. Peterson and Loesch, Scofield & Loesch, for appellant. F. J. Lewis Meyer, D. E. Morgan, and Kline, Tolles & Morley, for appellee. MYERS, J. Appellant, an Indiana corporation, engaged in constructing, maintaining, and operating telegraph lines in this state, connecting with lines of other telegraph companies, composing what is known as the "Postal Telegraph Cable Company System," to foreign countries, brought this suit against appellee, also an Indiana corporation, engaged in constructing, maintaining, and operating a single-track electric railway between Indiana Harbor and South Bend, Ind., for the purpose of restraining the latter from operating its line of railway until the same shall have been so constructed and arranged as not to interfere with the free and uninterrupted use by appellant of its telegraph lines. From the complaint it appears that each of these parties, respectively, in the conduct of their business, used currents of electricity, appellant using currents of small intensity, and appellee using high-tension currents, known as the single-phase alternating current system; that said system employ electrical currents of 33,000 volts, transmitted from a power station at Michigan City, to substations at Terra Coupe and Indiana Harbor, where they were transformed into currents of 6,600 volts; that the poles, lines, wires, and other electrical apparatus used by appellant in its said business are located upon its private right of way or upon highways, and are indispensable to the business in which it is engaged; that for many miles between Indiana Harbor and South Bend, in Indiana, appellee's line of railway is located upon its private right of way, paralleling and in close proximity to the right of way and telegraph wires used by appellant; that the high-tension currents of electricity carried by means of trolley wires employed by appellee to propel cars in the operation of its railway are of such character and intensity as to induce electrical currents of similar character in all electrical conductors of appellant in proximity to said trolley wires; that the high voltage so employed by appellee and by reason of its proximity and parallelism, and the manner of construction and mode of operation of said railway, greatly interferes with, and at times renders useless, appellant's telegraph lines. It further appears that such interference might be obviated by appellee installing electrical appliances and devices, but the character of these devices is not stated. The complaint proceeds upon the theory of electrical currents escaping from the trolley wires of appellee through what is scientif ically known as induction to the wires and electrical apparatus of appellant, essentially interfering with the free use and comfortable enjoyment of its property. It is insisted that the pleaded facts are sufficient to charge appellee with maintaining an actionable nuisance within the maxim, "Sic utero tuo ut alienum non lædas"; or, in other words, its right to relief is based solely upon the broad principle announced in the case of Fletcher v. Rylands, 1 L. R. Exch. 263, "that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape." The complaint does not charge, nor is it claimed that appellee is guilty of, any negligence, unskillfulness, or malice in the construction, maintenance, or operation of its line of railway. The only question for our decision is, Does the complaint state facts sufficient to constitute a cause of action? The questions controlling the decision of this case were presented, considered, and decided adversely to appellant in the case of Lake Shore & M. S. Ry. Co. v. Chicago, L. S. & S. B. Ry. Co., 92 N. E. 989, 95 N. E. 596, and, upon the authority of that case, the judgment in this case is affirmed. (49 Ind. App. 699) (No. 7,643.) (Appellate Court of Indiana, Division No. 1. Jan. 11, 1912.) Appeal from Superior Court, La Porte County; Harry B. Tuthill, Judge. Action by the Western Union Telegraph Company against the Chicago, Lake Shore & South Bend Railway Company. From a judg ment for defendant, plaintiff appeals. Affirmed. Rush Taggart, Henry D. Estabrook, and Pickens, Moore, Davidson & Pickens, for appellant. F. J. Lewis Meyer and Kline, Tolles & Morley, for appellee. MYERS, J. The controlling facts in this case are practically the same, and present the same questions as those considered and decided adversely to appellant in the case of Lake Shore & M. S. Ry. Co. v. Chicago, L. S. & S. B. Ry. Co., 92 N. E. 989, 95 N. E. 596, and the case of Postal Telegraph Cable Co. v. Chicago, L. S. & S. B. Ry. Co. (No. 7,640) 97 N. E. 20; and, upon the authority of those cases, the judgment in this case is affirmed. attorney of the mercantile agency, confessed judgment and caused the same to be stayed. Thereafter he made payments to the collection agency. Held, that the payments were unauthorized, and on the termination of the stay the judgment creditor was entitled to execution on the judgment. [Ed. Note. For other cases, see Judgment, Dec. Dig. § 874.*] Appeal from Circuit Court, . Huntington County; Samuel E. Cook, Judge. Action by Rebecca F. Stults and another against Nelson, Cheesman & Co. and another. From a judgment for defendants, plaintiffs appeal. Affirmed. C. W. Watkins and E. O. King, for appellants. W. A. Branyan, for appellees. FELT, C. J. This was a suit by appellants against George A. Mahoney, as sheriff of Huntington county, and Nelson, Cheesman & Co., to enjoin them from selling certain crops to satisfy a judgment taken in favor of appellee company against appellant Francis I. Stults. Issues were joined, a temporary restraining order issued, and the court requested to make a special finding of facts and state its conclusions of law thereon. From a judgment in favor of appellees, this appeal is taken. The errors assigned are: (1) Overruling appellant's motion for a new trial. (2) That the court erred in its conclusions of law and each of them. Appellant's motion for a new trial questions the sufficiency of the evidence to support the finding and judgment of the court, but no attempt has been made to bring the evidence into the transcript. The court found, in substance, that in 1906 an account against Francis I. Stults in favor of Nelson, Cheesman & Co. was sent to the Sprague's Mercantile Agency, Chicago, Ill., for collection; that in September, 1907, Sprague's Agency secured a special contract from Nelson, Cheesman & Co. in which it was agreed that, if Sprague's Agency collected said claim at its own expense, Nelson, Cheesman & Co. STULTS et al. v. NELSON, CHEESMAN & would accept 50 per cent. of the claim in (49 Ind. App. 208) CO. et al. (No. 7,462.) full payment; that, after this contract was (Appellate Court of Indiana, Division No. 1. procured, the claimant learned that Stults Jan. 12, 1912.) 1. APPEAL AND ERROR (§ 274*)-QUESTIONS REVIEWABLE-EXCEPTIONS TO CONCLUSIONS OF LAW-FINDINGS-CORRECTNESS. Exceptions to the conclusions of law admit, for the purposes of appeal, that the facts were correctly found. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1631-1645; Dec. Dig. 8 274.*] was solvent, and late in 1907 served a notice on him to pay no more money to the Sprague Agency, and further notified Stults Dun & Co., which concern was alone authat the claim was in the hands of R. G. thorized to collect the account; that this information was communicated by Stults to Sprague's Agency, and the latter agency, on the 27th day of January, 1908, abandoned 2. JUDGMENT (§ 874*)-PAYMENT-EFFECT. A debtor was notified by the creditor not any further effort to collect the claim and to pay any part of the claim to a collection notified Nelson, Cheesman & Co.; that on agency which had the claim for collection, and December 9, 1907, Francis I. Stults, at the that the claim was in the hands of a mercantile instance of the attorney for R. G. Dun & agency for collection. The collection agency made no attempts to collect the claim, and Co., went before a justice of the peace and subsequently the debtor, at the instance of an confessed judgment in the sum of $128.72. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes In view of these facts, the court could not do otherwise than find for the appellees. The controlling questions of fact are all found in their favor, and the questions of the rescission of contract and the rights and obligations of attorneys suggested by counsel require no consideration here, as the facts found by the court conclude every possible question presented by the record. Judgment affirmed. which was the full amount of the claim less I said Stults voluntarily confessed judgment $25 previously paid to Sprague's Agency; and caused the same to be stayed; that the that a transcript of said judgment was duly judgment was unpaid when the stay had filed in the office of the clerk of the Hunt- expired, and the execution for its collection ington circuit court; that said Stults duly was duly issued and a levy regularly made. stayed said judgment by his coappellant, Ernest W. Stults; that shortly before the expiration of the stay of execution Sprague's Agency sent said contract, in which Nelson, Cheesman & Co. had agreed to accept 50 per cent., to E. O. King, the law partner of said Stults; that Stults did not pay or satisfy said judgment of record, nor pay the same to the judgment creditor, but paid Attorney King $100, and said King retained $15 therefrom and forwarded to said agency $85; that on November 9, 1908, Sprague's Agency reported to Nelson, Cheesman & Co. that it had collected $109.85 and forwarded a personal check to Nelson, Cheesman & Co. for $54.92, which check it refused to accept and promptly returned the same to Sprague's Mercantile Agency; that an execution was duly issued out of the office of the clerk of the circuit court of Huntington county, state of Indiana, and a levy was made upon certain personal property of said Francis I. Stults; that this injunction suit was instituted in the Huntington circuit court, and appellees Nelson, Cheesman & Co. and the sheriff of said county were restrained from further proceeding thereon by order of the court. Upon this finding of facts the court stated its conclusions of law, in substance, as follows: That the law is with the appellees, and Francis I. Stults is estopped to deny the authority of. R. G. Dun & Co.; that said Stults was under no legal obligation to pay said claim to Sprague's Agency; that the restraining order should be dissolved, and Nelson, Cheesman & Co. proceed to collect said judgment. [1] On the state of this record, the only questions for our decision arise upon the exceptions to the conclusions of law. These exceptions admit for the purpose of this appeal that the facts are fully and correctly found. Questions that may arise between appellant Francis I. Stults and the Sprague Agency, or between said agency and Nelson, Cheesman & Co., are not material here. (49 Ind. A. 221) BOARD OF COM'RS OF ST. JOSEPH (Appellate Court of Indiana, Division No. 1. - EXCLUDING TIME (§ 10*) — TAKING APPEAL HOLIDAYS. Under Burns' Ann. St. 1908, § 1350, providing that the time within which an act is to be done shall be computed by including the last day, and if the last day be Sunday it shall be excluded, enacted while the statute providing that Sundays and enumerated days shall be holidays for purposes of presenting for payand giving notice of dishonor of commercial ment or acceptance, for maturity and protest, paper, was in force, and remaining unchanged notwithstanding the change in the statute so able on the day succeeding, and notwithstandas to make notes falling due on a holiday paying the enactment of section 9627, authorizing the closing of offices on holidays, a legal holiwhen falling on the last day for the perfecting day created since the passage of section 1350, of an appeal, cannot be excluded. [Ed. Note. For other cases, see Time, Cent. Dig. §§ 34-52; Dec. Dig. § 10.*] Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge. Action between the Board of Commissioners of St. Joseph County and the Tincher Motor Car Company. From a judgment for the latter, the former appeals. Dismissed. Fred Woodward, for appellant. Howell, Hubbell & Jones, for appellee. HOTTEL, J. The appellant in this case has attempted to perfect a term time appeal. Its transcript herein was filed in this court on the 5th day of September, 1911, which appellant concedes was the 61st day after the filing of its appeal bond. The appellee on the 6th day of December, 1911, filed its motion to dismiss the appeal on the ground that the same was perfected too late to constitute a term time appeal and that more than 90 days has expired since the filing of said transcript, and no service has been had or attempted to be had on appellee. [2] The finding of facts shows conclusively that Stults was notified to pay no more money to the Sprague Agency long before he paid the $100 to said company through Attorney King; that several months before such payment was made said company had abandoned the collection of the claim and notified Nelson, Cheesman & Co. of that fact; that the claim was placed for collection with R. G. Dun & Co., and the appel- The 60th day after the filing by appellant lant Francis I. Stults notified that it alone of its appeal bond was Labor Day, and ap, was authorized to collect the claim; that pellant insists that, because such day is |