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are not available to the driver of horses, and ,dence to sustain the verdict appellant takes the facts suggested, if they appear from the the position that the evidence shows that apevidence, are all proper for the consideration pellee was guilty of contributory negligence. of the jury in determining what precautions The same questions are presented with refordinary care required the driver of a motor erence to this as are presented and considercar to use under the circumstances of the ed with reference to the motion for judgparticular case. After all is said, however, ment on the answers to interrogatories. For the driver of a motor car is required to use the reasons above stated, we hold that the only ordinary care; but what he should do evidence is sufficient to sustain the verdict. in the exercise of due care must depend on [6] Complaint is made of instruction No. the conditions surrounding him, as shown by 7, tendered by appellee and given by the the evidence, and the means available for court, in that the court informs the jury controlling the speed and managing the car. that the leaving of a car extending 7 or 8

It is entirely proper for the trial court, in feet out into Sixth street was negligence per its instructions, to advise and direct the se, when the question of negligence should jury that in the consideration of such ques- have been left to the jury. There was evitions it should take into account the char-dence that the car was in the street and acter of the vehicle in which the injured under section 2671, Burns 1914 (Acts 1905, party was riding, and the manner and meth- p. 584), it is a misdemeanor for a conductor od of its control, etc.; but, when such court or other person to permit a car to remain in any case attempts to ix a standard or across a public street. This is negligence quantum of care different from that above per se. The car shut off the view of the indicated, it intrenches on the right of the other track from appellee, and certainly contrial of such question by the jury. Sections tributed to the injury. The violation of a 65, 249, Burns 1914; Balzer v. Waring, 176 statutory duty is negligence per se.

CleveInd. 585, 95 N. E. 257, 48 L. R. A. (N. S.) land, etc., Ry. Co. v. Tauer (1911) 176 Ind. 834; Pittsburgh, C., C. & St. L. Ry. Co. v. 624, 96 N. E. 758, 39 L. R. A. (N. S.) 20. Dove, 111 N. E. 609, and cases cited.

(7) Complaint is next made by appellant In support of its contention appellant cites of the refusal of the court to give instruction a number of cases: Railway v. Maidmant, numbered 3 tendered by it. This instruction 168 Fed. 21, 93 C. C. A. 413; Brommer v. sets out the substance of sections 10465, Penn. Ry., 179 Fed. 579, 103 C. C. A. 135, 10476, Burns 1914, regulating the speed of 29 L. R. A. (N. S.) 924; Chase v. Central Ry. automobiles, and requiring the owner thereof Co., 208 Mass. 137, 94 N. E. 377; Spencer v. to register, etc., and closed by telling the New York Central, 123 App. Div. 789, 108 jury that if appellee, when injured, was N. Y. Supp. 245; McFern v. Gardner, 121 Mo. operating his automobile in violation of any App. 1, 97 S. W. 972; Northern Pacific Ry. of such provisions, he could not recover, and v. Tripp, 220 Fed. 286, 136 C. C. A. 302. that its verdict should be for the defendant, It claims that some of these cases announce although it was found guilty of negligence. as a matter of law just what acts should be Without intimating that the instruction was done and what precaution should be taken by applicable to any phase of the case presented the drivers of motor cars in approaching rail. by the evidence, it is sufficient to say that the way crossings. Some of the cases cited, and last clause thereof was fatally prejudicial especially Brommer v. Penn. Ry., seem to to appellee, and made the refusal to give it lend support to appellant's contention; but,

proper. Under it any violation of any of if they are to be held as sustaining the prop- the provisions of the statute would defeat osition announced, they are contrary in prin

recovery by appellee, though such violation ciple to the rule announced in the Supreme did not remotely contribute to his injury. Court of United States. Grand Trunk R.

The refusal to give instruction No. 10, tenCo. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, dered by appellant, is urged as error. The 36 L. Ed. 485. The rule announced would closing part of this instruction is as follows: also be in conflict with the principles of law herein announced, and would be con "And if you find that because of obstructions trary to the settled rule declared by the de- or other conditions it was impossible for plaincisions of this state. Pittsburgh, C., C. & tiff to learn whether or not a train of cars was

approaching the Sixth street crossing, and he St. L. Ry. Co. v. Dove (1916) 111 N. E. 609, could, with little inconvenience, have left his and cases there cited.

car and gone ahead on foot, and bave satisfied [5] By the general verdict the jury found himself whether or pot cars or a train was apthat appellee exercised ordinary care, and under circumstances it was his duty, in the ex

proaching said crossing, then I instruct you that this court cannot say as a matter of law that ercise of due care, to have alighted from his car any of the acts or omissions shown by the and gone ahead and looked, and he is guilty of answers to interrogatories and relied on by contributory negligence if he did not do this, and

he cannot recover.' appellants as constituting negligence per se, were necessarily required of appellee in the For the reason indicated in our discussion exercise of ordinary care. The court did of the answers to interrogatories, this in. not err in overruling appellant's motion for struction was properly refused. judgment in its favor on the interrogatories. [8] There was no error in refusing to give In presenting the insufficiency of the evi- instruction No. 12, tendered, for, assuming

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that it correctly states the law, it was sufi- , There was no proof that it was ever pubciently covered in the instructions given. lished, and, under the statute in force when

Appellant contends that the court erred it was passed, the record showing its adopin excluding from the evidence a certified tion did not furnish presumptive evidence copy of an ordinance of the city of Nobles- that it was in effect. ville, section 1 of which limited speed of an [12] Appellant asserts that the law in automobile or other vehicle drawn by steam, force at the time of the trial made the recelectricity, gasoline, or other mechanical pow- ord showing the adoption of the ordinance er to 6 miles per hour within the corpora- presumptive evidence of its passage and gotion limits of said city, and provided that ing into effect, citing section 52 of the Cities the ordinance should not apply to vehicles and Towns Act (Acts 1905, p. 219; Burns run upon steel rails. The second section 1914, § 8654). The section to which we are provided that the driver of any such vehicle cited is a part of the general act providing as is described in section 1 shall give a for the government of towns and cities. signal when approaching any street crossing The section deals with the legislative in the city of Noblesville, and also prescribes power of cities, and confers power the care to be exercised by such drivers in the council of cities to pass ordinances for turning the corners of streets and on meet the government of the city. It prescribes the ing or overtaking vehicles drawn by horses. manner in which ordinances shall be passed, Section 3 provides a penalty for the violation and provides that no ordinance shall become of any of the provisions of the ordinance. a law or operative until it has been signed

[9] Appellee asserts that the ordinance by the presiding officer of the council and was properly excluded, for the reason that approved in writing by the mayor, or passed it was not properly pleaded as a defense by over his veto. It further provides that all a special answer. It was offered for the ordinances shall, within a reasonable time purpose of laying a foundation for the proof after their approval by the mayor or their of facts showing the violations of some of passage over his veto, be recorded in a book its provisions as showing negligence per se. kept for that purpose by the city clerk. Such The statute providing that the burden of record shall include the signature of the proving contributory negligence in a certain presiding officer, the attestation of the clerk, class of cases shall rest on the defendant and the mayor's written approval or disalso provides that such evidence may be approval, and in the latter case a memoran. given under the general denial. It has been dum of the passage of the ordinance over held that proof of tbe existence of an ordi- the veto, with the date of each of such nance and evidence to show its violation acts. Such record, or a certified copy there. may be proved to show contributory negli- of, shall be presumptive evidence of the pas. gence, without being specially pleaded. Hor- sage and going into effect of such ordinance. ace T. Wood Transfer Co. v. Shelton (1913) The last sentence of this section clearly re. 180 Ind. 273, 101 N. E. 718.

fers to a record made in the manner pre[10] As every presumption is indulged in scribed in the section and recorded in the favor of the ruling of the trial court, it must book kept for that purpose as therein probe assumed on appeal that some sufficient vided. It cannot be held to apply to the ground existed which justified the court in ordinance offered in evidence in this case. excluding the offered evidence. If the rul [13] It has been held in this state that ing of the trial court was correct for any an ordinance which has not been published reason, it will be upheld on appeal. The in accordance with the statute is without court will search the record to affirm. State force or effect. Loughridge v. City of Huntex rel. Garn v. Board of Election Com’rs of ington, 56 Ind. 253; Meyer v. Fromm, 108 Marshall Co., 167 Ind. 276, 78 N. E. 1016, and Ind. 208, 9 N. E. 84. In the case of Lake cases cited.

Erie & Western R. R. Co. v. Bratford, 15 [11] The ordinance offered in evidence was Ind. App. 655, 43 N. E. 882, 44 N. E. 551, passed in 1903, and provided that it should it was held that, where an ordinance was adtake effect after its publication for two mitted in evidence without objection, the weeks in the Daily Ledger, “the first of court on appeal would assume that it was which publications shall be made on the in force and effect, even though no evidence day

and the second on the was offered as to its publication. The quesday of said month, 1903." The ordi- tion arose in that case on the question of nance is penal in its character. A statute in the sufficiency of the evidence to sustain the force at the time this ordinance was passed verdict. The court said: provided:

“In the decision of this case, we go no fur"Every by-law imposing a penalty or forfei-ther than to hold that, under the facts here inture for the violation thereof shall, before the volved, the jury was justified in holding the ordisame shall take effect, be published two weeks nance in force. This course will, in our opinion, consecutively in some newspaper published in as a rule, produce just and proper results; for, the city." Burns' Ann. St. 1901, § 3535. if there really be any controversy as to the pub

Unless it was shown that the ordinance lication, the party can, by objection to the introhad become effective by virtue of its publica

duction, call for the proof." tion in accordance with the statute, the This case was followed in the later case

230, 87 N. E. 28. In neither of these cases, lant from building the bridge in question unwas it held, or even intimated, that a penal til sufficient funds are provided for completordinance could be properly admitted in evi- ing the remainder of the improvement of dence without proof of publication, where its which it is a part. Particular attention is admission was objected to at the time for directed to the statement in our original that reason; but, on the contrary, it was opinion that the matters suggested by the clearly intimated that, if the question had second, third, and fourth paragraphs of apbeen properly raised by an objection, the pellant's answer, if sustained by proof, court should have declined to admit the or- “might affect the terms and conditions of the dinance in evidence unless its publication court's order," and error is claimed in our was first proved.

holding that these matters were provable The record shows that an objection was under the general denial. It is true that, made to the ordinance when offered, which under our Code, "all defenses, except the the court sustained. For reasons stated, this mere denial of the facts alleged by the ruling was not error.

plaintiff, shall be pleaded specially" (section Judgment affirmed.

361, Burns 1914), and that, “under a mere

denial of any allegation, no evidence shall be (186 Ind. 72)

introduced which does not tend to negative WABASH RY. CO. V. TODD. (No. 23086.) | what the party making the allegation is

(Supreme Court of Indiana. Feb. 1, 1917.) bound to prove" (section 386, Burns 1914). 1. DRAINS 55—CONSTRUCTION OF BRIDGE

In relying on these statutory provisions, howPLEADING-PROOF.

ever, appellant misconstrues our decision As the drainage law does not determine the concerning the extent to which the facts order in which the sections of a proposed drain pleaded in the affirmative answer may affect shall be constructed, and does authorize additional assessments necessary to complete a work the issues. If sufficient to constitute a legal judicially established, and in view of Burns' defense to appellee's petition, they would Ann. St. 1914, § 361, requiring all defenses ex necessarily have to be pleaded specially, and cepting denial of facts alleged, to be pleaded it would be error to strike out an answer specially, and section 386, providing that under a mere denial of any allegation no evidence shall which contained such defense; but the cirbe introduced which does not tend to negative cumstances here relied on do not in any the allegation, in a proceeding to compel com sense constitute a bar to the relief which is pliance with a judgment requiring the defendant railroad to construct a bridge to allow a sought. They present only matters of fact drain to pass under its tracks, since the fact that which the trial court may consider, together the drain had not been completed up to that with other facts and circumstances, in so point would not constitute a bar to the relief fixing the terms of its decree as, in its dissought, such fact was admissible under general denial for consideration by the court, together cretion, shall seem right and just. Proof of with other facts affecting the terms of its decree these facts is admissible under the general in its discretion.

denial on the same principle that evidence [Ed. Note.-For other cases, see Drains, Cent. of circumstances which tend only to reduce Dig. $ 61; Dec. Dig. Om55.]

the amount of recovery may be so received 2. EVIDENCE Om69PRESUMPTIONS.

in an action for damages. In a proceeding to compel defendant railroad to construct a bridge to allow a drain

[2] It must be borne in mind: (1) That the to pass under its tracks, the Appellate Court drainage law does not determine the order must presume that proper steps will be taken to in which the several sections of a proposed issues of fact raised by defense that the drain improvement shall be constructed; and (2) had not been completed up to the point at which that it does authorize the levy and collection the bridge was required.

of additional assessments, if necessary, to [Ed. Note.- For_other cases, see Evidence, complete a work which has been judicially Cent. Dig. $ 90; Dec. Dig. Om69.)

established. This court must presume that Appeal from Circuit Court, Wabash Coun- proper steps will be taken to finish the drain ty; N. G. Hunter, Judge.

as ordered and cannot pass on issues of On petition for rehearing. Former opin- fact such as appellant seeks to present. ion modified and petition denied,

However, since the time heretofore fised for For former opinion, see 113 N. E. 997.

the construction of the bridge in question has J. D. Conner, Jr., of Wabash, and Stuart, it is obvious that the court's order must be

expired during the pendency of this appeal, Hammond & Stuart, of La Fayette, for ap- modified in that particular. pellant. Plummer, Todd & Plummer, of

On serious reconsideration of the matters Wabash, for appellee.

presented, we conclude that this cause

should be, and it is, remanded to the Wabash SPENCER, J. [1] Appellant has earnestly circuit court, with instructions to fix such requested a reconsideration of the issues time for the completion of said bridge by ap. presented by this appeal, to the end, either pellant as shall seem fair and reasonable that a rehearing may be granted and the de- under all the circumstances in issue. In cree of the Wabash circuit court in all all other respects the judgment of that court things reversed, or that the judgment of af- | is affirmed, and appellant's petition for a firmance be so modified as to relieve appel. I rehearing is overruled.

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

(186 Ind. 43)

deeds were without consideration; that they RENNER V. HANNA et al. (No. 23022.) were not delivered until after the death of (Supreme Court of Indiana. Jan. 30, 1917.) the testator, which occurred October 29, 1. PLEADING 364(1)-STRIKING OUT MAT- 1912, and that the grantees at no time took TER-ACTION TO CONTEST WILL-COMPLAINT. possession of said lands, but that possession

The construction of a will not being in issue thereof remained in the testator until his in an action to contest it, neither it nor a deed made a part thereof by reference has a place in death; that said deeds are of no force and the complaint, and may be struck out, being effect, except as vitality is given them by filed with it as part thereof.

the terms of the said will; that the making [Ed. Note.-For other cases, see Pleading, of said will was unduly influenced by said Cent. Dig. 88 1156, 1158, 1160; Dec. Dig. Om

devisees and others for the fraudulent pur364(1).] 2. APPEAL AND ERROR 1042(2)—HARMLESS the legal share of said devisees; that said

pose of obtaining more of said estate than ERROR-STRIKING PART OF COMPLAINT.

Striking from the complaint in action to con- devisees and others so induced said provitest a will allegation that a deed, made part of sions of said will for the purpose of giving the will by reference, was procured by fraud, iş validity to said deeds; that the execution of harmless. this being 'provable under the general the deeds and the will constituted "one and statutory allegation remaining.

[Ed. Note.-For other cases, see Appeal and the same transaction." Error. Cent. Dig. $ 4111; Dec. Dig. Om [1] The will and the deeds are, by copies, 1042(2).]

made parts of the complaint as Exhibits A, Appeal from Circuit Court, Morgan Coun- B, and C, respectively. ty; Nathan A. Whitaker, Judge.

“Appellant relies solely for a reversal upAction by Emma L. Renner against Sarah on" alleged "error of the court in striking C. Hanna and others. From an adverse judg- out parts of the second amended complaint," ment, plaintiff appeals. Affirmed.

and presents this question by each of her asHickam & Hickam, of Spencer, and J. E. signments of error. Said motion to strike Sedwick and A. M. Bain, both of Martins-out embraced all the allegations relating to ville, for appellant. Will H. Pigg and S. c. the deeds; the substance thereof being above Kivett, both of Martinsville, for appellees.

st ed. Treating this complaint as one to

contest a will, the rules bearing upon such HARVEY, J. Appellant was plaintiff and motion to strike out are as follows: contestant of a probated will in the trial

The will is not the foundation of the accourt. The trial resulted in a verdict and a tion. A copy of the will filed with the comjudgment sustaining the will. Appellant de plaint as a part thereof did not become a part scribes the action as one to contest a will; of the complaint. Schmidt v. Bomersbach, and this is evidently the proper theory of 64 Ind. 53; Summers v. Copeland, 125 Ind. the complaint.

446, 25 N. E. 555. By the same rule deeds The plaintiff alleged all the statutory referred to in the will and set out as exgrounds for contesting the will, using the lan-hibits in the complaint are not parts of the guage of the statute for such purpose, and in complaint, and it is not error to sustain a addition thereto alleged that said will pur- motion to strike them out. Summers y. Copeported to dispose of all the testator's prop- land, 125 Ind. 466, 25 N. E. 555. erty; that it purported to devise to Sarah Counsel for appellant cite Wheeler C. Hanna certain real estare. The language Loesch, 51 Ind. App. 262, 99 N. E. 502, in of the will in this respect is:

favor of their position. In that case the It is my will that my daughter, Sarah C. court was dealing with deeds which were deHanna, take no part of my estate, she having livered in escrow during the testator's life. been fully provided for by deed to certain lands of date of May 2, 1908, which was reckoned at The title had vested in the grantees, and the the purchase price in consideration of her agree-lands described were not a part of testator's ment to aid in caring for me and my wife, Har: estate at his death. "The deeds were valid riet Haase, in our old age, and she having paid me for subsequent improvements on said land, as such, and were not a part of the will, and said deed is her share of my estate in full," though mentioned in it," and therefore the

The same allegation is made as to a devise Appellate Court held that it was proper to of real estate to Lewis Haase, the provision strike from the complaint the reference to in the will as to this being as follows:

the deeds. “It is my will that my son, Lewis Haase, take

The statement in the foregoing decision no part of my estate, he having been fully pro- that it is error to strike out deeds which did vided for by deed to certain lands of date of May not pass title prior to testator's death, and 2, 1908, which was reckoned at the purchase price, and he having paid for subsequent im- which were part of the testamentary disprovements on said land, said deed is his share position of the property, is not controlling in in full."

view of the facts involved. The will made a provision of $100 in cash Counsel assert that the deeds are ineffecfor the wife, and the "rest and residue" of tive as such, and derive force only by virtue the estate was by the will given to certain of being incorporated into the will by the lanother children.

guage of the will itself, and are testamentary The complaint further alleges that said in character and a part of the will, and are

V.

re

thus subject to contest with the other parts / transcript is filed as required by law, the death of the will.

of an appellee after the appeal is prayed and It does not follow, however, that, because ate the appeal," and the heirs and personal rep

before the filing of the transcript does not vitireference to the deeds is necessary, as meas- resentatives of the deceased appellee are uring the “rest and residue" of the estate, the quired to take notice of such appeal, and an asdeeds were so far a part of the will that they signment of errors with the prevailing party as

appellee is sufficient. must be recorded in the clerk's office as a part

(Ed. Note.-For other cases, see Appeal and of the will. The will, if sustained, is com- Error, Cent. Dig. 1846-1850; Dec. Dig. plete in itself, in that it identifies the deeds 333.) referred to. The deeds, whether recorded or 2. APPEAL AND ERROR Om334(1)-DEATH OF not, when produced in any proceeding in con APPELLEE ASSIGNMENT OF ERRORS nection with the will, show the property to be

AMENDMENT. subtracted from the estate in ascertaining transfer the judgment to his personal repre

As the death of an appellee operated only to the "rest and residue."

sentatives or heirs or legatees, the fact that he Counsel argue that it is proper to set out died before the transcript was filed did not these deeds in the complaint to contest the vitiate the appeal, but merely rendered a reviva will, in order that the will may be construed. jurisdiction of the appeal and to allow an

or necessary so that the Appellate Court had The construction of the will is not in issue amendment of assignments of errors to make in a proceeding to contest. Clearspring

the decedent's heirs and personal representatives Township v. Blough et al., 173 Ind. 15, 88 ed for filing the transcript.

parties appellee after the expiration time allowN. E. 511, 89 N. E. 369.

[Ed. Note.-For other cases, see Appeal and It is not inconsistent with the above rule Error, Cent. Dig. § 1851; Dec. Dig. Om334(1).) to hold that, when the will and such other 3. APPEAL AND ERROR Ow721(2) ASSIGNpapers as are by its terms and, in a sense, a MENTS OF ERROR-COPARTIES. part of it, or such as may be necessary to a If all parties against whom a verdict is clear understanding of it, are offered in evi- rendered filed a motion for new trial assigning dence, the court shall construe the will and erally, and a ruling is bad and exceptions taken

the same causes therefor, either jointly or sevsuch other papers as the court did in Ditton by all parties against whom the ruling is made v. Hart, 175 Ind. 181, opinion at page 191, 93 either jointly or severally, the question is preN. E. 961, for the information of the jury, of error whether made by one or all the parties

sented to the Appellate Court on an assignment in order that the jury may determine the excepting to such ruling, either by joint or issue of testamentary capacity and undue separate assignments. influence. The verdict, however, is to the (Ed. Note.-For other cases, see Appeal and effect only that the will is valid, or invalid, Error, Cent. Dig. 88 2986, 2989; Dec. Dig.

721(2).] and its construction for other purposes, if valid, is open to later proceedings.

4. WILLS 288(1) – ACTIONS TO CONTEST

BURDEN OF PROOF. It is well that the special character of a

The burden of proof is on the proponents of proceeding to contest a will be regarded ; a will to establish at least a prima facie case that the statutory provisions be closely ad-by showing by some evidence all the essential hered to. Confusion will probably result facts necessary to the validity of the will, al

though no evidence to the contrary is produced from any other practice.

by contestants on question put in issue by ob[2] The allegations of the complaint that jection to the probate. the deeds were procured by wrongful and [Ed. Note.-For other cases, see Wills, Cent. fraudulent conduct were stricken out by vir- Dig. &$ 651, 652; Dec. Dig. On288(1).] tue of the ruling hereinbefore mentioned. 5. TRIAL O 296(7)-INSTRUCTIONS-CURE OF The striking out of these allegations of wrong.

ERROR. ful and fraudulent conduct in the procuring shifted the burden to contestants of questions

In a will case, error in an instruction which of the deeds was not harmful to contestant, as of duress and fraud was not cured by a later such matters were provable under the gener- clause of the same instruction and other instrucal statutory allegations remaining in the tions that the burden is on the proponents to complaint. Clearspring Township v. Blough that the will was not unduly executed, and that

establish by a preponderance of the evidence et al., 173 Ind. 15, opinion at page 24, 88 N. the testator was not unduly influenced to exeE. 511, 89 N. E. 369, and cases cited.

cute it, since the only manner in which the court There being no error in sustaining the mo- may obviate the error given in an improper in

struction is to withdraw it. tion to strike out part of the complaint, the

(Ed. Note.-For other cases, see Trial, Cent. judgment of the trial court is affirmed.

Dig. $ 710; Dec. Dig. Om 296(7).] (186 Ind. 56)

6. APPEAL AND ERROR 1064(1)-REVIEW

REVERSIBLE ERROR: JOHNSON et al. v. SAMUELS et al.

If by an instruction the burden of proof is (No. 22893.)

placed on the wrong party, the judgment will be (Supreme Court of Indiana. Jan. 31, 1917.) reversed. 1. APPEAL AND ERROR C 333TERM TIME

[Ed. Note.-For other cases, see Appeal and OF APPEAL-DEATH OF APPELLEE--EFFECT.

Error, Ceut. Dig. & 4219; Dec. Dig. Om 1064(1); Where an appeal was prayed in term and | Trial, Cent. Dig. 8 533.) time given to file bill of exceptions and bonds, 7. WILLS 155(1) UNDUE INFLCENCE the filing of the bond within the time allowed PERSONS EXERCISING. relates back to the date the appeal is granted While undue influence is generally exerted and the time fixed for filing the bond, and if the by the beneficiary, a will may be invalid be

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes
114 N.E.-62

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