hadn't been adjusted? A. I do not know. Q. Don't you remember that, right at the time of the wreck, they were all adjusted except three or four? A. There were very few; yes, sir." The Dr. Perkins referred to was called as a witness in behalf of the appellant, and he testified, in part, as follows: "Q. Do you know whether or not, before this party left Junction City, they were all, or what portion of them were settled? A. Some of the settlements were made going down on the train. . Some were made in Junetion City, and some on the train after leaving Junction City. Q. Do you know how many were not settled with, if any, at the time of the wreck? A. There were a few that were not settled. There was Mr. Johnson and his wife, and Mr. and Mrs. Peck, and one or two others. That is all I remember of."

In the course of his cross-examination this witness volunteered the following statement: "Most cases, you understand, on the railroads now are settled; those that are reasonable." Counsel then asked the following question: "Well, those that ask for a reasonable sum in comparison to their injuries?" The witness answered: "That is, if the railroad thinks it is reasonable, they settle; yes. We settle ninety-nine out of one hundred, and it isn't the railroad's fault that they don't settle the other one." And again he says: "I think the railroads have been very reasonable in the last fifteen years. I think our claim agents are very reasonable; they try to make the men satisfied." We can conceive of no purpose for which counsel for appellant introduced this matter into the case, unless it was to impress upon the minds of the jury that it is the policy of the railroad company to make a fair and honorable settlement of all just claims for damages made against it, and further to create the impression that the case at bar would have been amicably settled had it not been for what the railroad company deemed the unreasonable and extortionate demands of respondent. However, we are not concerned as to the motive counsel for appellant may have had in introducing this ele

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ment into the case, but, having done so, without limiting it to any special purpose, counsel on the other side had a perfect right to comment upon it, and to draw therefrom any inferences, by way of argument, of which it was susceptible; and, so long as he kept within the bounds of decorum, appellant had no right to complain. But conceding, for the purposes of argument, that counsel did exceed the limits of legitimate argument, and that the remarks complained of were improper, this assignment of error must nevertheless be overruled. The record shows that the remarks were made in the opening argument for respondent; that counsel for appellant was present at the time and made no objection thereto, but permitted the attorney making them to proceed without interruption. No objection was made at all to the remarks, nor was there any exception taken to them until after the case was submitted to the jury and the jury had retired to consider their verdict. Nor did appellant ask the court to instruct the jury to disregard the remarks. The great weight of authority holds that a party, in order to avail himself of the misconduct of opposing counsel in the argument of a case, and have it reviewed on appeal, must make a seasonable objection, and thereby give the trial court an opportunity to remove any prejudicial effect it may have had on the case by admonishing the of fending counsel to desist, or by timely instruction to the jury to disregard the objectionable remarks.

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We do not wish to be understood as holding that in all cases of misconduct of this character an admonition, rebuke, or reprimand from the court, even when supplemented by cautionary instructions to the jury, will remove the prejudicial effect produced by the misconduct. Instances may, and do sometimes, occur when the misconduct is so flagrant and of such a character that neither a vigorous reprimand of counsel nor an instruction to the jury can right the wrong inflicted on the adverse party by such misconduct. But even in such cases the authorities practically all hold that it is incumbent upon the aggrieved party, if he intends to rely on

the misconduct as error, to interpose objections thereto at the time it occurs. Thompson, in his work on Trials (section 957) tersely and, as we think, correctly states the general rule as follows:

"In the discharge of this office, as of every other, the presiding judge is entitled to reasonable aid from the counsel in the case on trial, or from the parties themselves, where they appear in propria persona. Where counsel, in arguing to the jury, exceed the limits allowed to advocacy, the way to correct the prejudicial effect of the argument is either to object to it at the time, to answer it by counter argument, or to ask suitable instructions to the jury with reference to it. After verdict it comes too late; and, whether the objection is saved for review by affidavit, or by a recital in a bill of exceptions (according to the practice in the particular jurisdiction), it is equally necessary that the record should show that the objection was made at the time of the misconduct."

The following authorities illustrate and support this doctrine: 2 Ency. Pl. & Pr. 755; Spelling, New Tr. & App. Pro. 90; State v. Spencer, 15 Utah 149, 49 Pac. 302; C., B. & Q. Ry. Co. v. Kellogg, 55 Neb. 748, 76 N. W. 462; U. P. Ry. Co. v. Field, 137 Fed. 14, 69 C. C. A. 536; Rudolph v. Landwerlen, 92 Ind. 34; Metropolitan Ry. Co. v. Johnson, 90 Ga. 500, 16 S. E. 49. Furthermore, section 3304, Comp. Laws 1907, so far as material here, provides:

"WHAT MAY BE REVIEWED ON APPEAL.-Upon an appeal from a judgment, all orders, rulings and decisions in an action or proceeding to which exceptions have been taken in the court below, or which are deemed excepted to, as provided by this Code, are before the Supreme Court for review."

Misconduct of counsel in making improper remarks to the jury in the course of an argument is not one of the matters deemed excepted to. Section 3282, Comp. Laws 1907, provides:

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"An exception is an objection upon a matter of law to the decision made by a court, judge, referee, or other judicial officer, in an action or proceeding. The exception must be taken at the time the decision is made except as provided in the next section."

By an examination of the next section it will be seen that the matter under consideration does not fall within it. Under these provisions of the statute it seems plain that an exception must be taken to an order, ruling, or decision of the court, otherwise it will be unavailing on appeal for any pur pose. In this case no objection, formal or otherwise, was made to the alleged improper remarks; nor was there any request made for an instruction to the jury on the subject. Consequently there was no ruling or refusal to rule thereon by the court, and hence there is nothing in this assignment of error which we are authorized to review. What we have here said disposes of several other assignments of error which are based upon the alleged misconduct of counsel for respondent in their discussion of the case to the jury.

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In conclusion we remark that, after a thorough and careful examination of the entire record, we are satisfied that the case was fairly and impartially tried, and that no injustice. has been done. There is an abundance of evidence to sustain the verdict.

The judgment of the court below is affirmed, with costs.
STRAUP, C. J., and FRICK, J., concur.

A. I. STONE, as Administrator of the Estate of BENJA-
MIN F. ECKLES, Deceased, Respondent, v. UNION
PACIFIC RAILROAD COMPANY, a Corporation,
Appellant.

No. 1906. Decided February 9, 1909 (100 Pac. 362).

1. MASTER AND SERVANT-RULES FOR THE PROTECTION OF EMPLOYEES -NEGLIGENCE. On the issues, whether the conduct of a business required the promulgation and enforcement of rules for the protection of employees, and whether the employer negligently failed to promulgate any rules or promulgated insufficient rules, it is proper to show that others engaged in the same business adopted and enforced rules, and to show what such rules are. (Page 321.)

35 Utah-20

2. MASTER AND SERVANT-RULES FOR THE PROTECTION OF EMPLOYEES -NEGLIGENCE. That a rule promulgated and enforced by an employer for the protection of his employees is insufficient because it fails to prescribe a reasonably safe method of doing a particular work, may not always be shown by simply proving that others engaged in a similar business adopted different rules on the same subject. (Page 321.)

3. MASTER AND SERVANT-RULES FOR THE PROTECTION OF EMPLOYEES -NEGLIGENCE. A master engaged in a dangerous business must promulgate such rules for the conduct of the business as will afford reasonable protection to his servants; but he need not adopt any particular rule, and when the rule adopted, enforced and followed is sufficient to protect the servants the rule is sufficient. (Page 321.)

4. MASTER AND SERVANT-RULES FOR THE PROTECTION OF EMPLOYEES -NEGLIGENCE. A master must use reasonable care to inform his servants of the rules promulgated for their protection, and to see that the rules are complied with. (Page 321.)

5. MASTER And Servant-RULES FOR THE PROTECTION OF EMPLOYEES -NEGLIGENCE. The test of the sufficiency of rules promulgated by a master for the safety of his servants is, whether the rules prescribing the method of work, if obeyed, afford reasonable protection to the servants, and hence the sufficiency of a particular rule cannot in most cases be determined by a simple comparison of one rule with that of another adopted on the same subject. (Page 322.)

6. MASTER AND SERVANT-RULES FOR THE PROTECTION OF EMPLOYEES -NEGLIGENCE. A master's negligence in failing to promulgate and enforce any rules for the conduct of the business may in some cases be established by evidence that the business is commonly regulated, together with the manner of such regulation. (Page 322.).

7. MASTER AND SERVANT-RULES FOR THE PROTECTION OF EMPLOYEES -NEGLIGENCE. A servant complaining of the failure of the master to adopt any rules for the conduct of the business or to adopt sufficient rules has the burden of establishing that a rule is necessary, and when a rule has been adopted he must show wherein it is insufficient. (Page 322.)

8. MASTER AND SERVANT-RULES FOR THE PROTECTION OF EMPLOYEES -NEGLIGENCE. The jury must determine the sufficiency or insufficiency of a master's rule prescribing a method of doing the work from the evidence in which the character of the work is shown, and in what way the rule should regulate the work