the two streets. The plaintiff's contention was that just before the accident he had ceased play and started to go to his home, and that when he came into collision with the car he was crossing the street upon the crosswalk at the intersection of the streets for the purpose of going to his home.

An

One contention of the defendant was that the plaintiff was trying to steal a ride upon the car, and that, having got upon the front step, he fell from it and was run over. other contention of the defendant was that the plaintiff, if not trying to steal a ride, was playing tag in the street, and ran into the car while so engaged in play. The defendant also contended that the plaintiff, if neither trying to steal a ride nor playing in the street, but attempting to go to his home, ran into the car so carelessly that he could not recover for his injury: The plaintiff also contended that, even if he first came in contact with the car while he was playing in the street, after such first contact he was so placed on the car, and gave such notice of his peril to the motorman, as to make it the defendant's duty to stop the car and let the plaintiff off, and that, on the contrary, the motorman, upon seeing the plaintiff's position, and hearing his request to be let off, increased the speed of the car, and so caused him to be thrown from the car and run over. The third count of the declaration was treated at the trial and upon the argument of the case here as founded upon this contention.

Every one is aware that among the many suits brought to recover for personal injuries there are cases, of which we do not intimate that the present one is an instance, in which unjust claims are sought to be sustained by testimony which, if not wholly false or manufactured, is so colored and distorted as to tend to mislead juries and judges and to pervert justice. Yet the plaintiff in such a suit has the right to have his alleged cause of action determined by a jury, if upon any reasonable view of the conflicting evidence it can fairly be found as a fact that he was hurt while in the exercise of due care, and by the defendant's fault. If in any jury trial there seems to be danger that the jury will give an unjust verdict upon evidence which in law ought to be submitted to its decision, the proper course is to take the verdict, and then to set it aside as against the evidence, or the weight of the evidence, rather than to order a verdict. There is no justification for the latter course in a suit in which it does not appear that any wrong verdict has ever been taken. In the present case, therefore, the question for us is whether, upon any fair view of the reported evidence, there might have been a finding for the plaintiff upon either count of his declaration. Of course, in dealing with the evidence the jury could find to be true any statement testified to by a witness, although disbelieving some or all of the other statements made by the same witness. Examin

ing the evidence with this rule in mind, it is plain that the jury could find from it that the plaintiff, when he came in contact with the car, was neither playing tag in the street, nor attempting to steal a ride. The witnesses called for the plaintiff who testified to seeing the accident were Joseph Rivers, Michael F. Kelley, Bertie Oberlander, Emil Lanthier, and the plaintiff himself. All of these witnesses testified to the playing upon the church lawn, and to the plaintiff's running across the street and coming in contact with the car. But none of the statements of the first four of these witnesses are necessarily inconsistent with the theory that when the plaintiff started to run across the street he had ceased to play tag, and was on his way home. No one testified that the plaintiff was then chasing any other boy, or that any one was trying to catch him. The defendant contends that the plaintiff himself, in his own testimony, conclusively admitted that he was playing tag when hurt. But all of his testimony was to be considered, and he testified, "I started to go home after I played tag;" and when, by an ingenious series of double questions, after so testifying he was brought to say, "We were shacking," and "Yes, sir," there followed these questions and answers: "Q. So that very moment you got hurt you were playing tag? You weren't going home then, were you? A. No, sir; not when I got hurt. Q. If the other boy had caught you in time, you would have been 'it,' and you would have played some more? A. No, sir." We think-and certainly a jury could so find-that the answer, "No, sir; not when I got hurt," was a negative answer to the question, "So that very moment you got hurt you were playing tag?" and that the last "No, sir," supported the plaintiff's contention that he had stopped play before he attempted to cross the street. Besides this, it is to be remembered that in "tag" the object of the pursued boy is to avoid being touched by his pursuer, and that the plaintiff, if still playing tag, would not be likely to board a car moving not more than at five miles an hour. One witness called by the defendant testified with great positiveness that the plaintiff was standing on the street before the car got around the corner, and as it was rounding the corner; "standing about halfway between the track and the curbing." If this last piece of testimony cannot be considered, because given after the ruling that the plaintiff could not recover on the first or second count, it shows that the granting of that request without requiring the defendant to rest was in fact prejudicial to the plaintiff. But, without that evidence, and upon the case as it stood when the plaintiff rested, we think it could be found from the evidence that when the plaintiff left the lawn and started across the street he had ceased his play, and was a traveler using the highway to return to his home. Considering the tender age of the

plaintiff, if he was not engaged in play he could not be said, as matter of law, to have been guilty of negligence in running across the street on his way home. It could be found from the evidence that when he ran from the lawn the car had not yet entered the street, and it does not appear that there was any other vehicle in the street with which there was danger of his coming into collision. It cannot be held, as matter of law, that for a child of six or seven years to run across a street on his way home from school is of itself negligence. He himself testified that his attention was attracted by the whistle of steam cars which were crossing the same street at a more distant point; and neither the fact that he was running, nor that he did not see the electric car, precluded a finding that he was in the exercise of such care as might be expected from an ordinarily prudent child of his years.

Considering next the question of the defendant's negligence, the evidence would justify a finding that the car turned into the street across which the plaintiff was running without sounding the gong, and at a speed variously stated by different witnesses; the lowest estimate being two miles an hour, and the highest five. Whether due care on the part of the defendant would require it to give warning of the entrance of the car into the street by ringing the gong was a matter peculiarly within the province of the jury to determine. It could not be said, as matter of law, that the gong did sound, nor, if it did not, that the omission was not negligent. If the gong did not ring, and if the omission to sound it under the circumstances was negligent, it might be found, if the plaintiff was in the exercise of due care, and had ceased play and was running home, that his injury was the defendant's fault. So, too, with reference to the cause of action attempted to be maintained under the third count, we think the evidence presented a case for the jury. It certainly could not be said, as matter of law, upon the evidence, that the plaintiff was hurt while attempting to steal a ride upon the car. If while at play he carelessly ran into the car, and if in attempting to save himself from the consequence of such a collision he found himself upon the car, the defendant could not rightfully disregard his peril, if informed of it, and run its car as if nothing had occurred. The defendant had no right | to the exclusive occupation of the street. It was at all times bound to use due and reasonable care to see that its car by its motion caused no unnecessary damage to persons rightly in the public street. There was abundant testimony that before the plaintiff was finally thrown from the car he was upon the step, in a place of comparative safety, very near to and in full view of the motorman, and requesting the motorman to let him off, and that the motorman, instead of stopping or attempting to stop the car,

increased its speed, and so caused the plaintiff to be thrown to the ground and run over. To be sure, this testimony was contradicted. But whether it was true or not was a question for the jury. If it was true, and if the plaintiff was not a trespasser attempting to steal a ride, to disregard the peril of a child of less than seven years of age, who by his own careless collision with a street car was clinging, frightened, upon the step and to the handle of the car, calling for his mamma and to be let off, and to increase the speed of the car, instead of attempting to comply with the child's request, is a course of conduct of such a clear and direct tendency to inflict serious injury as to be actionable, when practiced by one traveler towards another in a public street, where both were lawfully present.

Case to stand for trial.

(157 Ind. 281)

SHAUL et al. v. CITIZENS' STATE BANK
OF NEWCASTLE.
(Supreme Court of Indiana. Oct. 11, 1901.)
APPEAL CASES APPEALABLE-AMOUNT IN-

VOLVED-DISMISSAL.

Acts 1901, p. 566, § 6 (Burns' Ann. St. 1901, § 1337f), provides that no civil case within the jurisdiction of a justice of the peace can be appealed to the supreme or appellate court except as provided by section 8. Section 8 (Burns' Ann. St. 1901, § 1337h) allows such appeal only when the validity of a franchise or ordinance, or the constitutionality or construction of a statute, or a constitutional right is in question. Burns' Ann. St. 1901, § 1500 (Rev. St. 1881, § 1433; Horner's Rev. St. 1897, § 1433), gives justices of the peace jurisdiction to try suits on contract not involving more than $100, and concurrent jurisdiction to the amount of $200. Held, that no appeal would lie from a judgment on a note for $100, with interest thereon, amounting in all to less than $200, where no questions mentioned in section 8 were involved.

Appeal from circuit court, Hamilton county; John F. Neal, Judge.

Action by the Citizens' State Bank of Newothers. castle against Isaac Shaul and Judgment for plaintiff, and defendants appeal. Dismissed.

Christian, Christian & Cloe, for appellants.

MONKS, C. J. Appellee brought this action on a promissory note for $100, with interest, and recovered judgment against appellants for $131.75. Appellee moves to dismiss the appeal on the ground that the same is a civil action within the jurisdiction of a justice of the peace, and is therefore not appealable. Section 6 of the act of 1901 (Acts 1901, p. 566), being section 1337f, Burns' Ann. St. 1901, provides that no civil case within the jurisdiction of a justice of the peace can be appealed to the supreme court or appellate court except as provided in section 8 of said act. Said section 8, being section 1337h, Burns' Ann. St. 1901, provides for an appeal to the supreme court in cases

unappealable under sald section 6 (section 1337f), supra, only when "there is in quesLion and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a municipal corporation, or the constitutionality of a statute, state or federal, or the proper construction of a statute, or rights guaranteed by the state or federal constitution." Section 1500, Burns' Ann. St. 1901 (section 1433, Rev. St. 1881; section 1433, Horner's Rev. St. 1897), provides that "justices of the peace have jurisdiction to try and determine suits founded on contract or tort, when the debt or damages claimed or the value of the property does not exceed one hundred dollars; and concurrent jurisdiction to the amount of two hundred dollars." This act, being on a promissory note for not more than $200, was clearly within the jurisdiction of a justice of the peace. The fact that the amount of the principal and interest of said note was more than $100 is immaterial, for the reason that a justice of the peace, under section 1500 (section 1433), supra, has jurisdiction in actions like this to the amount of $200. As no question mentioned in section 8 (section 1337h), supra, is presented, this action is not appealable. The motion to dismiss the ap peal is therefore sustained. Appeal dismissed.

(157 Ind. 491)

SMITH et al. v. FAIRFIELD et al.1 (Supreme Court of Indiana. Oct. 11, 1901.) DRAINS-REMONSTRANCE-APPEAL-PARTIES. 1. To give the supreme court jurisdiction of an appeal taken in vacation, the assignment of errors must contain the full names of all parties affected by the judgment.

2. Where a part of joint judgment defendants appeal under Burns' Rev. St. 1901, § 647 (Horner's Rev. St. 1897, § 635; Rev. St. 1881, § 635), allowing appeals by a part of coparties, all the persons jointly bound must be named as appellants. Joining them as appellees in the caption of the assignment of errors is of no effect.

Appeal from circuit court, Allen county; Edward O'Rourke, Judge.

Proceedings by Willard A. Fairfield and others against Annie A. Smith and others for the establishment of a drainage ditch. From a judgment overruling a remonstrance filed by said Smith and others, part of the remonstrators appeal. Dismissed.

S. R. Alden, for appellants. T. E. Ellison, for appellees.

commissioners, upon the filing of the viewers' report, 17 persons filed a joint and several remonstrance. The remonstrance having been decided against them, 14 of the remonstrators executed a bond and appealed to the Allen circuit court. In the circuit court on November 29, 1897, 4 of said remonstrators, namely, Dallas and Mary Branstrator, and Newton and Catherine Kimmel, "filed their written withdrawal and consent that said ditch may be established as found by the board of commissioners." On February 8, 1899, the 4 persons so withdrawing without its appearing how they were relieved of their previous formal withdrawal and assent to the proceeding, and 11 others, refiled in the circuit court the remonstrance filed by them before the commissioners April 9, 1897. The issues presented by the remonstrance were tried and determined in the circuit court adversely to the remonstrators, and a general judgment rendered establishing the ditch, and "that the petitioners recover of the remonstrators their costs," etc., whereupon said 4 persons and 11 others of the remonstrators filed their joint and several motion and reasons for a new trial, which motion was overruled, and the same 4 persons and 10 other coremonstrants prayed an appeal to this court. In the assignment of error here the names of these 4 persons appear in the caption in a long list of appellees, but they do not appear as appellants in the caption, or anywhere in the body of the assignment. From the files it is shown that the 4 had notice, and the Kimmels appeared and filed their declination to join in the appeal. But nothing is shown with respect to the action of the Branstrators.

To give this court jurisdiction of an appeal taken in vacation, the assignment of errors must contain the full names of all parties affected by the judgment, since we have no power to disturb a joint judgment without disturbing it as to all, and have no jurisdiction to disturb it as to those who are not parties to the appeal. Gourley v. Embree, 137 Ind. 82, 36 N. E. 846; Association v. Olcott, 146 Ind. 176, 45 N. E. 64; McClure v. Coal Co., 147 Ind. 119, 46 N. E. 349; Barnett v. Manufacturing Co., 149 Ind. 606, 49 N. E. 160; Ewbank, Man. § 126.

Inserting in the caption of an assignment of errors, as appellees, the names of judgment defendants jointly bound with the appellants, amounts to nothing. It is assigning them an attitude wholly inconsistent with their relation to the case, and is unwarranted by the statute relating to appeals. It has been often and uniformly held by this court that when part only of joint judgment defendants take a vacation appeal under section 647, Burns' Rev. St. 1901 (section 635, Horner's Rev. St. 1897; section 635, Rev. St. 1881), all the persons jointly bound must be named in the assignment of error as appellants. Gregory v. Smith, 139 Ind. 48, 38

N. E. 395; Benbow v. Garrard, 139 Ind. 571, 39 N. E. 162; Inman v. Vogel, 141 Ind. 138, 40 N. E. 665; Ledbetter v. Winchel, 142 Ind. 109, 40 N. E. 1065; Vordermark v. Wilkinson, 142 Ind. 142-146, 39 N. E. 441; DenkeWalter v. Loeper, 142 Ind. 657, 42 N. E. 358; Railway Co. v. St. Clair, 144 Ind. 363, 42 N. E. 214; Roach v. Baker, 145 Ind. 330, 43 N. E. 932, 44 N. E. 303; Lowe v. Turpie, 147 Ind. 652-691, 44 N. E. 25, 37 L. R. A. 233; McKee v. Root, 153 Ind. 314, 54 N. E. 802. What the effect may be of the appearance of the Kimmels and their refusal to join in the appeal, we do not decide, since the absence of the Branstrators, in any event, will defeat the appeal.

Appeal dismissed.

(157 Ind. 271)

ACME CYCLE CO. v. CLARK et al. (Supreme Court of Indiana. Oct. 11, 1901.) CONTRACTS BREACH AND CONTINGENT PROFITS-CONTEMPLATED LIABILITIES-MOTION TO STRIKE-BILL OF EX

CEPTIONS.

SPECULATIVE

1. In an action for goods sold and delivered, defendant filed a counterclaim alleging plaintiff's failure to deliver a plant for the manufacture of bicycle hubs. It further alleged an extraordinary demand for bicycles; that all parts thereof except the hubs were obtainable in the market; that at the time of the negotiations defendant was making 10 hubs a day; and that with the machine for hubs it would manufacture at least 500 more bicycles per month. Orders for bicycles were shown, which defendant alleged it was unable to fill through plaintiff's failure to deliver the hub machine, and the profits it would have made on such sales were stated. Defendant failed to state that it had the capacity to make an increased number of hubs, if the machine had been delivered, or that it would have been able to procure the other necessary parts of the bicycles. No expenses were incurred in anticipation of the delivery of the hub machines, and no damages sustained other than the loss of profits on the sales it would have made. Held, that a demurrer to the counterclaim should be sustained on the ground that the loss of profits on the bicycles which defendant might possibly have manufactured and sold cannot be considered as damages arising naturally from the breach of the contract to deliver the hub machines at the time fixed by the contract.

2. In an action for goods sold and delivered, defendant filed a counterclaim for damages on account of plaintiff's failure to deliver a machine for the manufacture of bicycle hubs. The counterclaim alleged that the demand for bicycles was in excess of the supply; that all parts of a bicycle, excepting the hubs, could be bought in the market; and that these facts were known to everyone. Held, that speculative and contingent profits on probable sales cannot be held to have been in contemplation of both parties at the time of the contract, so as to render plaintiff liable therefor.

3. Where a pleading, not stating a cause of action, and containing nothing but immaterial matter, is stricken out, and a correct result is reached, the ruling on the motion to strike is not ground for reversal.

4. A special bill of exceptions, under Burns' Rev. St. 1894, § 642, which states the manner of reserving questions of law, must contain the statement that the evidence embraced therein was all that was given in the cause on 61 N.E.-36

the subject referred to in the questions and answers set out in the bill.

5. Where a bill of exceptions was filed by the court stenographer before the judge signed it, but not filed after obtaining his signature, such filing is not sufficient.

Appeal from circuit court, Elkhart county; Perry L. Turner, Judge.

Action by Henry W. Clark and others against the Acme Cycle Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Van Fleet & Van Fleet, for appellant. James H. State and Miller & Drake, for appellees.

DOWLING, J. The appellees sued the appellant upon an account for goods sold and delivered. The answer was a general denial and a plea of payment. The appellant also filed seven paragraphs by way of counterclaim for damages in the sum of $15,000. A demurrer to the fourth paragraph of the counterclaim was sustained, and, on motion of the appellees, the fifth paragraph of the counterclaim was stricken out. A reply in denial of the second paragraph of answer, and answers in denial of the remaining paragraphs of the counterclaim, were filed by the appellees. The cause was tried by a jury, and a verdict in favor of the appellees was returned.

The errors assigned and discussed by counsel are the rulings of the court upon the demurrer to the fourth paragraph of the counterclaim, upon the motion to strike out the fifth paragraph of counterclaim, and upon the motion for a new trial. The fourth paragraph of the counterclaim stated, in substance, that the appellees sold and agreed to deliver to the appellant on or before September 20, 1895, one complete hub plant, consisting of one Bardons & Oliver hub machine, and one No. 4 machine fitted up for the second operation, both to be complete with tools, and two No. 4 Bardons & Oliver screw machines complete, with No. 2 spindle friction gears, etc., for all of which the appellant agreed to pay the appellees $1,650; that said machine was not delivered until January 20, 1896; that at the time said contract was made it was well known to all persons that the demand for bicycles was so great that it could not be supplied during the years 1895 and 1896; that, while there was at that time in the market an unlimited supply of all the parts of a bicycle except the hubs, no hubs could be purchased, and that all persons well knew this condition would last during the years 1895 and 1896; that the appellant, when said negotiations were pending and said contract was made, was prepared to manufacture 5 front hubs and 5 rear hubs per day; that with a maIchine which would make 125 front hubs, or 75 rear hubs, per day, it would manufacture at least 500 more bicycles per month than it was then doing; that the net profit on each

bicycle was $5, and that these facts were contemplated by the parties at the time the contract was made; that, in consequence of the failure of the appellees to deliver said hub plant for 4 months after September 20, 1895, appellant failed to make 2,000 bicycles which it would have made if it had been furnished with said hub plant, and that during said time appellant received and was unable to fill 2,019 orders for bicycles; that appellant's profits on said orders would have been $5 per wheel on 1,157 wheels, and $6 per wheel on 862 wheels, and that appellant was thereby damaged in the sum of $10,957. The sole ground of appellant's claim for damages is the alleged loss of contingent, anticipated profits. The basis upon which they were estimated was the general demand for bicycles, the scarcity of hubs for these machines, and its belief that, with a machine which would manufacture 125 front hubs or 75 rear hubs in a day, it would be able to manufacture at least 500 more bicycles each month than it was then doing, and that its net profit on each bicycle would be $5. It is stated in the complaint that these facts were known to, and were contemplated by, the parties at the time the contract was made.

Before passing to the consideration of the rule of damages to be applied in this case, it is to be observed that the complaint is silent in respect to certain facts of much importance even in the view of the law taken by appellant's counsel. We find nothing in the paragraph to indicate that at the time the hub machines were to be delivered the appellant was prepared to manufacture more than 5 bicycles in a day, or, say, 125 a month. This seems to have been the limit of its capacity when the contract was made. It was then using machines which could turn out only 5 front hubs and 5 rear hubs in one day. It is not stated that the appellant was manufacturing, or was prepared to manufacture, more bicycles than it had the capacity to make hubs for. If it did so, it must have purchased all of its hubs in excess of those manufactured by its own plant. But, if it had a plant of sufficient capacity to manufacture more than 5 bicycles in a day, that fact is nowhere stated. It cannot be supposed that a small establishment, capable of turning out only 5 bicycles in a day, or 125 in a month, could suddenly expand, without considerable additions to its buildings, power, and other machinery, to a capacity of 25 bicycles in a day, or 600 in one month. If the appellant had so extensive a plant, or if, in anticipation of the great increase in its business, it enlarged its works after ordering the hub machines from the appellees, the complaint should have said so. As nothing of this kind is claimed, we must assume that the appellant made no change in its plant before the hub machines were delivered, and that, in fact, it waited to see what the new machines would do, and

whether the demand for bicycles would justify it in enlarging its works. If this was the plan of the appellant, and if the erection, purchase, or leasing of additional buildings in which to carry on its business, and the purchase, construction, and adjustment of a vast quantity of new machinery required for the manufacture of 500 bicycles per month, was postponed by the appellant until the actual delivery of the hub machines by the appellees in January, 1896, it follows that the appellant was not prepared to use the new machines, and that if they had been delivered on or before September 20, 1895, considerable time must have elapsed before the appellant could have prepared to increase its output from 125 bicycles per month to 625 per month. The hub of a bicycle is an important part of the mechanism, but there are many other parts, and unless, in addition to the machines for making the hubs, the appellant was prepared to manufacture all the other parts of a bicycle, it could not be said that its losses of profits or sales resulted from the failure of the appellees to deliver the hub machines. If the appellant did not intend to manufacture the other parts of the bicycle, but expected to purchase all of them, except the hubs, then it seems that it should have been stated with some particularity when and from what sources the appellant expected to procure such other parts, and whether it had made any engagements for such supplies. If no such contracts were made by the appellant, how could it be said with any degree of certainty that the appellant could at any time go into the market and buy all the parts of a bicycle, excepting the hubs, at such prices as would enable it to make a sure and reliable profit of $5 on each bicycle?

The case as made by the fourth paragraph of the counterclaim stands thus: The appellant says that on July 20, 1895, it had the capacity to manufacture 5 bicycles a day, and more. If it had a machine for making hubs alone, which would turn out 75 rear hubs or 125 front hubs per day, it could then manufacture and sell 25 complete bicycles per day, at a profit of $5 on each bicycle. Do the facts stated authorize any such conclusion? Upon the breach of a contract to deliver machinery to be used in a manufacturing establishment, the rule is that "the damages which the injured party ought to receive in respect of such breach of contract are such as may fairly and reasonably be considered either arising naturally, i. e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it." Hadley v. Baxendale, 9 Exch. 341; 4 Moak, Eng. Rep. 369; Horne v. Railway Co., L. R. 8 C. P. 131; France v. Gaudet, L. R. 6 Q. B. 199; Griffin v. Colver, 16 N. Y. 489, 69 Am. Dec. 718;