Appeal from Circuit Court, Pike County; point at which the car was accustomed to receive John L. Bretz, Judge. passengers. Action by John R. McCoy as trustee of the Cent. Dig. §§ 1154, 1159; Dec. Dig. 287(6).j [Ed. Note.-For other cases,

estate of Elmer G. Devin, to secure a construction of the last will and testament of Nancy Devin, deceased, against James A. Houck, executor of Nancy Devin, deceased, and others. Judgment for complainant, and the executor and others appeal. Affirmed.

Bachelder & Bachelder, of Indianapolis, Harvey Harmon, of Princeton, and Richardson & Taylor, of Petersburg, for appellants. O. M. Welborn, of Princeton, for appellee.

SPENCER, J. This action was instituted by appellee John R. McCoy, as trustee of the estate of Elmer G. Devin, to secure a construction of the last will and testament of Nancy Devin, deceased, as to certain bequests therein made. The facts in issue were found specially by the trial court, and its conclusions of law, stated thereon, serve as a basis for the judgment from which this appeal is taken. In support of their contention that said judgment should be reversed appellants have assigned and rely on 9 separate allegations of error in the proceedings below. One of these assignments challenges the action of the circuit court in overruling appellants' motion for a new trial, which motion contains 17 grounds. Under the heading of "Points and Authorities" appellants' principal brief sets out 20 separately numbered propositions of law which are stated in abstract form and with no attempt to apply them to any of the several assignments of error. This failure to comply with rule 22 of this court (55 N. E. v) is pointed out and relied on by appellees in their answer brief, but appellants have made no effort to amend their original statements of points and authorities, and in their reply brief they make no contention that there was a good-faith effort to comply with the above rule. Since no question is properly presented for our consideration (Cleveland, etc., R. Co. v. Ritchey [1916] 111 N. E. 913), the judgment of the trial court must be affirmed, and we need not pass on appellees' motion to dismiss the appeal.

see Carriers,

Appeal from Circuit Court, Howard County; William C. Purdum, Judge.

Action by Effie McVey, administratrix of the estate of Lewis McVey, deceased, against the Union Traction Company of Indiana. Judgment for the plaintiff, and defendant appeals. Affirmed.

J. A. Van Osdol, of Anderson, and Blacklidge, Wolf & Barnes, of Kokomo, for appellant. Bell, Kirkpatrick & Voorhis and Overson & Manning, all of Kokomo, for appellee.

SPENCER, J. Appeal from a judgment for $6,200 recovered by appellee for the death of her decedent, which is alleged to have been caused by negligence on the part of appellant. Omitting the formal averments, the complaint charges, in substance, that on September 18, 1913, and long prior thereto, appellant, as the operator of an electric passenger railway system between the city of Logansport and the city of Kokomo, maintained a Y, or switch, at the intersection of Taylor and Union streets in said city of Kokomo, over which it backed its cars from a passenger station about two blocks south before turning west onto the Logansport lines; that on the day in question appellee's decedent went to appellant's interurban station for the purpose of becoming a passenger on one of its cars on the Logansport line, and there saw that the car had left the station and was backing north toward the Y, whereupon he went to the intersection of Taylor and Union streets for the purpose of becoming a passenger on said car at that point; that when he reached said intersection the car had backed east on Taylor street, and was then moving slowly westward over the east switch of said Y at a speed of four miles per hour; that "while said car was moving, as alleged, slowly west on Taylor street and over said switch, the conductor was in the rear vestibule; that as said car was moving slowly over said switch, as aforesaid, the decedent came into Taylor street and near said car, to wit, 6 feet from said car, and said, 'Frank, I want to get on; let me on;' and while decedent was so situated, defendant company, by its agent and employé then and there authorized to control its said car and manage the ingress and egress of passengers to said car, its said conductor, did then and there motion to the Where a passenger seeks to board a street decedent to get on said car and did then and car which was moving slowly, and indicated his there wave his hand to decedent to get on desire to do so to the conductor, who expressly invited him to become a passenger, and while said car, and did then and there call to said he was actually on the steps of the car mounting decedent, and said, 'Get on;' * that to the vestibule, it was negligence for the con- the intersection of Union and Taylor streets ductor to signal for an increase of the speed of and the place where plaintiff's decedent was the car, without giving the passenger a reasonable opportunity to mount the steps in safety, killed and where he attempted to board said even though the place was not a regular stopping car was a regular stopping place, and that

Judgment affirmed.

(185 Ind. 698)

UNION TRACTION CO. OF INDIANA v.
MCVEY et al. (No. 22993.)
(Supreme Court of Indiana. Dec. 19, 1916.)
CARRIERS 287(6)—INJURIES TO PASSENGER
BOARDING STREET CAR-PLACE OF BOARD-

ING.

*

Appeal from Circuit Court, Randolph County; James S. Engle, Judge.

The instructions as a whole stated the law as favorably to appellant as it was entitled, and there is evidence in the record sufficient Action by Grant C. Markle against the to sustain the finding of the jury as to each Cleveland, Cincinnati, Chicago & St. Louis material issue on which appellee had the Railway Company. Judgment for the plainburden of proof. This conclusion serves, in tiff, and defendant appeals. Reversed, with substance, to dispose of every question pre-instructions to grant new trial. sented by appellant, and renders it unnecessary to consider each specification in de

tail.

No error appearing, the judgment of the trial court must be, and is, affirmed.

CLEVELAND, C., C. & ST. L. RY. CO. v.
MARKLE. (No. 22604.)*

(Supreme Court of Indiana. Dec. 20, 1916.)
1. NEGLIGENCE 113(4)-COMPLAINT-CON-
TRIBUTORY NEGLIGENCE.

Where the facts alleged do not wholly exclude a reasonable inference of freedom from contributory negligence, the complaint is not objectionable as affirmatively showing contributory negligence.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 189; Dec. Dig. 113(4).] 2. TRIAL 115(1)-MISCONDUCT OF ATTORNEY ARGUMENT REFERENCE TO COURT'S AC

TION.

In an action against a railroad company for personal injuries, where the evidence as to plaintiff's contributory negligence, which was the principal defense, was very close, a statement by plaintiff's attorney in his closing argument that, if plaintiff's failure to do certain things was contributory negligence, the court would not have submitted the case to the jury, and his repeating, after objection was sustained, that, if the only inference to be drawn was that plaintiff was contributorily negligent, he was negligent as a matter of law, and no jury would have gotten the case, was improper.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 279, 281; Dec. Dig. 115(1).] 3. TRIAL 129-MISCONDUCT OF ATTORNEY -REPLY TO OPPOSING COUNSEL.

That argument was not justified as a reply to the argument of defendant's counsel as to contributory negligence which was logically based on the evidence.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 310; Dec. Dig.

129.]

4. TRIAL 133(6)—ARGUMENT OF COUNSEL CURE BY COURT.

That error was not cured by the court sustaining an objection thereto and instructing the jury to disregard the remarks, since it cannot be determined whether the jury were influenced by the remarks or not, and defendant was entitled to have the verdict of the jury on that issue, even though the court was of the opinion that the preponderance of the evidence was in plaintiff's favor.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 316; Dec. Dig. 133 (6).] 5. APPEAL AND ERROR 1032(1)—PREJUDICIAL ERROR-BURDEN OF PROOF MISCONDUCT OF COUNSEL.

The burden is on a party whose counsel has improperly stated extraneous facts to the jury to show that the remarks were not prejudicial because they did not influence the verdict or because the verdict was clearly right. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4047, 4051; Dec. Dig. 1032(1).]

Spencer and Erwin, JJ., dissenting.

Miller, Shirley, Miller & Thompson and Frank L. Littleton, all of Indianapolis, and Macy, Nichols & Bales, of Winchester, for appellant. Walter G. Parry, of Winchester, and John F. Robbins, of Indianapolis, for appellee.

MORRIS, J. Action by appellee for personal injuries sustained at a street crossing. Appellant's motion to make the complaint more specific, and its demurrer to the complaint, were each overruled. A trial by jury resulted in a verdict and judgment for appellee.

[1] Without setting out the motion to make more specific, it is sufficient to say that there was no error in overruling it. The principal objection urged against the complaint is that it affirmatively shows contributory negligence. We are of the opinion that the facts averred do not wholly exclude a reasonable inference of freedom from contributory negligence, and consequently there was no error in the ruling. Greenawaldt v. Lake Shore, etc., Ry. Co. (1905) 165 Ind. 219, 223, 74 N. E. 1081; Cleveland, etc., R. Co. v. Rumsey (1913) 52 Ind. App. 371, 100 N. E.

782.

It is earnestly contended by appellant that the trial court erred in overruling its motion for a new trial, grounded, among other

things, on alleged misconduct of John F. Robbins, one of appellee's attorneys, in his closing argument. The matters complained of are exhibited in a bill of exceptions containing the following:

"Mr. Robbins: I am simply replying to this argument that was made for one hour-that this man was guilty of contributory negligence by failure to do certain things-and all I was saying was that, if that were so, your honor, you would never have submitted it to the jury. Mr. Miller: I ask the court to instruct the jury not to consider why this case was submitted to the jury. The Court: The jury will disregard the argument of Mr. Robbins that the reason why this cause goes to the jury was because, as a matter of law, the plaintiff was not guilty of negligence as a matter of law. What the court has done or should do in this matter is not a matter for the jury's consideration. The gentleman has a right to argue to this jury that, as a matter of law, the plaintiff is not guilty of contributory negligence, but he should make no reference to the duty of the court in this respect. Mr. Robbins: I said this, and I am going to say it again. I am not going to intrench on the rule of the court. I said it is a law of the state of Indiana that when but one inference can be drawn from the conduct of a plaintiff-that if they were guilty is a fact no jury ever got to try a case because, of contributory neglience; I said when this as a matter of law, he is guilty of contributory negligence. Mr. Miller: The defendant objects to the further statement made by the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

counsel for the plaintiff and moves the court in | ing one of appellant's freight trains crossed this case to set aside the submission of this the street, going west, on the south track, cause to the jury on the ground of improper and then stopped; that appellee then proconduct of the counsel in closing argument. Mr. Robbins: And I don't suppose The ceeded northward and was struck by another Court: Just wait, Mr. Robbins. You must pay train, going east on the north track; that to some attention here. The jury will disregard the west there were certain obstructions, the statement made by Mr. Robbins which has been objected to by the counsel for the defend- and the west-bound freight emitted much ant and not consider it in this case. Mr. Miller: smoke, and its engine made a loud noise, I move to set aside the submission. The Court: after stopping. Appellant's crossing was Motion overruled. Mr. Miller: To which the defendant excepts. Mr. Robbins: May I state equipped with an electric gong to warn whenever a man approaches a railroad cross- travelers of the approach of trains. This ing The Court: If you continue this, you gong was ringing, after the passing of the will get the submission set aside. Mr. Robbins: west-bound freight, and as appellee apI don't say Mr. Miller or Mr. Bales are men that would deliberately concoct perjury, but I proached the north track; but he testified do say railroad companies often have agencies that, while he heard the same, he thought it at work in damage suits that are awfully un- was a continuance of the sounding of the reliable. Mr. Miller: I object to the statement just made by plaintiff's counsel, and ask gong caused by the passing of the westthe court to instruct the jury that it is improp- bound freight. It is claimed by appellee that er argument. I think this is not proper argu- there is evidence that warranted the jury ment. Mr. Robbins (Con.): Do you think in finding that the gong was in the habit of these young men that came here and swore falsely after they held up their hands are re- ringing for some time after a train had passliable witnesses? Mr. Miller (Con.): To make ed the crossing, and that appellee knew said a statement to the jury that railroad compa- fact. The evidence relating to the question nies often have agencies which are unreliable in the manner in which Mr. Robbins has stated of contributory negligence was oral and, in it is to impute fraud and prejudice the jury some respects, conflicting, and was such as against railroad companies generally and to make the case a very close one. Appelagainst this defendant. It would throw no lant, at the close of the evidence, had made light- Mr. Robbins: I was about to add, when I was interrupted by the voluble gentle- a motion to instruct the jury to find for deman-I was about to add that in this case this fendant. The motion was overruled. It may fact was made certain and plain. We have got be that this motion was predicated on the them right here in this court and in this witness chair, five or six different men coming in theory that the evidence, as a matter of law, here and contradicting each other in material showed contributory negligence. If so the facts, haven't we? Mr. Miller: I do think we ruling of the court on the motion was not a are entitled to a ruling. The Court: I will in- proper subject of discussion by appellee's struct the jury to disregard the statement made by Mr. Robbins covering the statement that counsel. Campbell v. Maher (1886) 105 Ind. railroad companies often have agencies that 383, 4 N. E. 911. But even had such discusare unreliable. Mr. Robbins (Con.): Perhaps sion been proper, there was nothing in any I ought not to have said they often had. I am going to content myself by saying they did possible question presented by appellant's have in this case, and that they brought them motion, or the court's ruling thereon, to into court, and that they swore to lies right justify appellee's counsel in making the here before this jury. Mr. Miller: I object statement, which sought to convey to the and move the court to set aside the submission of this case on the ground that the counsel has jury the idea that the court, impliedly, had made a statement to the jury concerning which held that the plaintiff was not guilty of conthere is not an iota or scintilla of evidence in tributory negligence. Appellee had made no this case, and which cannot be cured by a mere instruction of the court to the jury to dis- motion to withdraw the issue of contributory regard it. The Court: Gentlemen of the jury, negligence from the jury's consideration, the expression made by counsel for this plain- and, if such motion had been made, it would tiff that is objected to is withdrawn from the have been without any basis for support. jury, and the jury will not consider it in their deliberations upon a verdict in this case. The The question of contributory negligence here motion to withdraw the case from the jury is was essentially one for the jury's determinoverruled. Mr. Miller: To which the defend- ation. By the statement it was sought, withant excepts." out any justifiable excuse, to present to the jury an extraneous matter normally calculated to greatly prejudice appellant's right by eliminating from the jury's consideration the main ground of defense relied on. In such case, the burden is on the offending party, where the verdict was in his favor, to show that the misconduct was, in some manner rendered harmless. Perry, etc., Stone Co. v. Wilson, 160 Ind. 435, 67 N. E. 183; Nelson v. Welch (1888) 115 Ind. 270, 16 N. E. 634, 17 N. E. 569; Troyer v. State (1888) 115 Ind. 331, 333, 17 N. E. 569. the latter case, Mitchell, J., said:

Mr. Miller, referred to above, was one of appellant's counsel. As shown by the records of this court, Mr. Robbins is a lawyer of long and active experience in the practice of his profession.

[2] The principal defense relied on by appellant was that of contributory negligence. The evidence tends to show, among other things, that appellee, at the time of the accident, was a physician, in the prime of life, and in possession of his faculties of sight and hearing; that he was traveling northward in a buggy, on Union street, in Winchester, and approaching the point where the street was crossed by two of appellant's railroad tracks; that when near the cross

In

"When counsel abandon the evidence and the wide range of argument and illustration which it affords, and seek by a side wind to bridge

over or supply what may seem a close point, I as here, ventured "to say it again," when the by bringing forward matter not in evidence, court stopped him with a reprimand and adand commenting upon it, they take the hazard

of showing that such conduct was fully set right monished him that he must discuss other by the court, or that it was harmless." matters. While it was conceded by this

In School Town of Rochester v. Shaw (1885) 100 Ind. 268, 272, counsel for appellee made a prejudicial and improper statement in his closing argument. The court warned him to desist, but the statement was reiterated. Subsequently, in its instructions, the court attempted to remove the possible erroneous impression, but this court, in awarding a new trial, said:

[3] Counsel for appellee seek to meet ap-court, in that opinion, that the trial court pellant's contention on this point by assert- there did its full duty in the premises at the ing that: (1) The statement relative to contime the misconduct happened, yet it nevertributory negligence was a proper argument theless erred in overruling the motion for a to refute that of appellant; (2) that, if im- new trial after verdict for appellee. proper, it was rendered harmless by the action of the trial court. As to the first assertion, little need be said. Appellant's counsel had argued at length that the plaintiff was guilty of contributory negligence. The evidence furnished a logical basis for legitimate argument of that character. The statement of appellee's counsel can in no wise be deemed a proper rejoinder to such argument, and it did constitute misconduct. [4, 5] As to the second assertion, a more difficult question is presented. In many cases errors predicated on misconduct of counsel have been held cured by the action of the trial court. In others, though everything possible was done except setting aside the submission and discharging the jury, the injury has been held irreparable. In Latham v. U. S. (1915) 141 C. C. A. 250, 226 Fed. 420, L. R. A. 1916D, 1118, it was said:

"Every one must realize that there are exceptional cases where, although the court does stop counsel, and does caution the jury, the impression has been made by the remarks of counsel, and, although the jury honestly try to ig; nore that impression, it still enters into and forms a part of the verdict. In such cases, the trial court should set aside the verdict, on motion for a new trial. The language of Justice Fowler, in Tucker v. Henniker, 41 N. H. 325, is pertinent, and applies with great force to criminal prosecutions: 'Yet the necessary effect is to bring the statements of counsel to bear upon the verdict with more or less force, according to circumstances; and, if they in the slightest degree influence the finding, the law is violated, and the purity and impartiality of the

trial tarnished and weakened. * It is unreasonable to believe the jury will entirely disregard them. They may struggle to disregard them. They may think they have done so, and still be led involuntarily to shape their verdict under their influence. That influence will be greater or less, according to the character of the counsel, his skill and adroitness in argument, and the force and naturalness with which he is able to connect the facts he states with the evidence and circumstances of the case. To an extent not definable, yet to a dangerous extent, they unavoidably operate as evidence which must more or less influence the minds of the jury, not given under oath, without cross-examination, and irrespective of all those precautionary rules by which competency and pertinency are tested.'"

The language from Tucker v. Henniker, supra, quoted above, was quoted with approval by this court in St. Louis, etc., R. Co. v. Myrtle (1875) 51 Ind. 566, 580, and in Porter v. Cohen, 60 Ind. 338, 347.

"The attempt of the court afterwards, in its instructions, to remove all erroneous impressions that may have been created upon the minds of the jury by such declarations by plaintiff's attorney, came too late; whatever impressions may have been made by such declarations already had a lodgment in the minds of the jury, and we cannot say that if made they would be entirely removed by instructions from the court. The declarations were improper and well calculated to produce the intended' prejudice against the defendant and its cause of defense."

See, also, United States Cement Co. v. Cooper (1909) 172 Ind. 599, 614, 88 N. E. 69; Inland Steel Co. v. Gillespie (1914) 181 Ind. 633, 649, 104 N. E. 76. In Vandalia Coal Co. v. Price (1912) 178 Ind. 546, 577, 97 N. E. 429, this court said of an attorney's statement more prejudicial in character than the one in controversy:

"No doubt in most cases the effect of remarks of such nature cannot be cured by any instruction or admonition of the trial court."

In Appel v. Chicago, etc., R. Co., 259 Ill. 561, 102 N. E. 1021, it was said by the Supreme Court of Illinois:

"In a clear case, however, this court will reverse a judgment because of the improper conduct of counsel, and has reversed judgments, because of prejudicial statements of counsel, even though the trial court has sustained objections to such statements, rebuked counsel, and directed the jury to disregard the statements.

Wabash R. Co. v. Billings, 212 Ill. 37, 72 N. E. 2; Chicago Union Traction Co. V. Lauth, 216 Ill. 176, 74 N. E. 738. The rule in this state must be regarded as settled that misconduct of counsel of the character mentioned is sufficient cause for reversing a judgment, unless it can be seen that it did not result in injury to the defeated party. The questions. to be determined are, therefore, whether the improper argument was of such a character as was likely to prejudice the defendant, and, if so, was the verdict so clearly right that a new trial ought not to be granted because of such prejudicial argument."

In McCoy v. Chicago, etc., R. Co. (1915) 268 Ill. 244, 109 N. E. 1, an improper statement of counsel was rebuked by the trial In Rudolph v. Landwerlen (1883) 92 Ind. court, but a new trial was ordered, because, 34, the facts were such as to make the case as held, it was impossible to say that the ver instructive here. In that case appellee's dict was clearly right. To the same effect, counsel made an improper statement. Ap- see Remey v. Detroit, etc., R. Co., 141 Mich. pellant's counsel objected, and the objection 116, 104 N. W. 420; Hillman v. Detroit, etc.,