Cleveland, etc., R. Co. v. Markle-187 Ind. 553. in feet, is seldom to be determined as a matter of law." This is not a case where we can say as a proposition of law that the answers to the interrogatories exhibit facts in irreconcilable conflict with the general verdict. The last error relied on is the overruling of appellant's motion for a new trial. In support of this motion it is insisted that the verdict is not sustained by sufficient evidence and is contrary to law. We have carefully reviewed the evidence, keeping in mind the seventeen points made by appellant as to this specification, without being convinced that its insistence should be sustained. It is our conclusion that the evidence supports the verdict, and is not for that reason contrary to law. A further specification is grounded on the misconduct of appellee's counsel in his closing argument. The mis conduct of which appellant complains is exhibited 10. in a bill of exceptions, and has given this court more concern than all other questions presented by this record. Such conduct cannot be approved, nor should it be excused on the ground of inadvertence. We may also say that the patience of the trial judge in this matter, if he would be entirely free from criticism, is not to be commended. However, this court in dealing with this question, must keep in mind certain potential and well-defined rules of practice, requiring all reasonable presumptions to be indulged in favor of the proceedings of the trial court. Here misconduct of counsel has been pointed out, also the action of the court toward correcting the alleged error. In all such cases the procedure adopted by the court must necessarily depend upon and be suitable and pertinent to the character of the misconduct to which it is directed. It should be timely invoked. It should be emphatic and explicit to the end that no injurious effect may result therefrom. Proper action by the trial court in such instances in Cleveland, etc., R. Co. v. Markle-187 Ind. 553. volves a discretion for the abuse of which only will this court interfere. Adams v. State (1912), 179 Ind. 44, 99 N. E. 483. * Conceding that the remarks of counsel, and his persistence after being cautioned by the court, amounted to misconduct and are presumed to be harmful, 11. the question then is, Does the record show that such misconduct was counteracted, and its prejudicial effect removed from the minds of the jury? It appears that the court, immediately following the objection to each improper statement of counsel, explicitly instructed the jury to disregard such remarks. Also, the jury was admonished to disregard any remarks of counsel impliedly referring to any ruling of the court, because "not a matter for the jury's consideration. * The jury will disregard the statement (referring to other remarks of counsel) and not consider it in this case." The court cautioned counsel that he must pay some attention, and, failing to do so, he was informed, "If you continue this, you will get the submission set aside." The court, as we have seen, did attempt to correct the misconduct by instructions, which, if given in a spirit to effect the purpose, and it must be so accepted, then a jury of ordinary intelligence would be set right. Buffkin v. State (1914), 182 Ind. 204, 106 N. E. 362. By the motion for a new trial the attention of the court was again called to the misconduct of counsel, and upon a reconsideration of all that had transpired, and after a further review of the case, the motion was overruled, thereby, in effect, deciding that no injury had come to appellant from the alleged error. This record, in its entirety, is against the proposition that the jury was misled, and that a fair trial was not had. Complaint is made of the court's refusal to give instructions Nos. 5, 8, 11 and 13 tendered by appellant. State, ex rel. v. Lewis-187 Ind. 564. The court gave instructions Nos. 1, 2, 3, 6, 7, 12 12. and 14 tendered by appellant, which covered every theory and phase of the case as favorably to appellant as the evidence and the law authorized. Judgment affirmed. NOTE.-Reported in 119 N. E. 371. Railroads: failure to give statutory signals on approaching crossing as excuse for traveler's contributory negligence, 6 Ann. Cas. 78, 33 Cyc 991. See under (1) 33 Cyc 1024; (3) 29 Cyc 631. STATE OF INDIANA, EX REL. INDIANAPOLIS TRACTION AND TERMINAL COMPANY, v. LEWIS ET AL. [No. 23,420. Filed July 30, 1918.] 1. MUNICIPAL CORPORATIONS.-Street Railroads.—Proceeding to Increase Fares.-Public Service Commission.-A city in granting a franchise to a street railroad company fixing the rate of fares under §2, Acts 1899 p. 260, §5649 Burns 1914, was not a necessary party in a proceeding before the Public Service Commission to increase fares, since the city streets are a part of the public highway system of the state, and the city in granting the franchise was acting as the agent of the state. p. 567. 2. MUNICIPAL CORPORATIONS. Powers of Legislature. Franchises. The legislature has power to consent to the surrender of a franchise granted by a city to a street railway company without the approval of the city. p. 568. - 3. PUBLIC SERVICE COMMISSION. - Powers and Duties. The Public Service Commission as created by Acts 1913 p. 167, §10052a Burns 1914, is a legislative agency, assumed to be qualified by knowledge and experience to regulate the public utilities of the state with reasonable fairness to both the public and the utilities. p. 568. 4. STATUTES.-Construction.—A statute, if possible, should be so construed as to give effect to all its provisions. p. 569. 5. CONSTITUTIONAL LAW. - Obligation of Contracts. -Impairment.-Although the legislature is inhibited by Art. 1, §10, of the federal Constitution from passing any act impairing the obligations created by franchise or contract, it should be noted that new conditions present, requiring the safeguarding of State, ex rel. v. Lewis-187 Ind. 564. public interests, will justify the state in exercising its reserve power in the regulation of persons or property to promote the health, the welfare or the interest of great public needs. p. 570. 6. CARRIERS.-Rates.-Regulation.-Public Service Commission. -Section 122, Acts 1913 p. 167, §10052s4 Burns 1914, authorizes the Public Service Commission in emergencies to regulate the rates of street railroads that have not surrendered their franchises under §101, but such power extends to set aside contractual relations only temporarily because of a public necessity. p. 571. 7. EVIDENCE.-Judicial Notice.-Street Car Rates.-If a street railroad company was receiving only a reasonable rate of fare before the war, it is a matter of common knowledge that it cannot, during the war, continue to furnish reasonable service under the old rate. p. 574. 8. CARRIERS.-Regulation of Fares.-"Emergency."—A petition by a street railroad company for an increase in the rate of fares which showed greatly increased expenses due to the war, showed an "emergency" within the meaning of §122, Acts 1913 p. 167, §10052s4 Burns 1914, and the refusal of the Public Service Commission to consider the petition on the grounds of no jurisdiction was error. p. 574. 9. MANDAMUS.-Public Service Commission.-Since the statute makes no provision for an appeal from an order of the Public Service Commission refusing to take jurisdiction of a petition seeking relief under §122, Acts 1913 p. 167, §10052s4 Burns 1914, and there being no other adequate remedy, mandamus will lie to compel the commission to take jurisdiction. p. 575. From Marion Circuit Court (28,656); Louis B. Ewbank, Judge. Mandamus proceedings by the State of Indiana, on the relation of the Indianapolis Traction and Terminal Company, to compel the Public Service Commission of Indiana to take jurisdiction of a petition to allow the relator to increase fares on its street cars. From a judgment sustaining a demurrer to the complaint, the relator appeals. Reversed. Ferdinand Winter and W. H. Latta, for appellant. Ele Stansbury, Attorney-General, for appellees. Woodburn Masson and Samuel Ashby, amici curae. State, ex rel. v. Lewis-187 Ind. 564. MYERS, C. J.-On November 19, 1917, the relator filed with the Public Service Commission its petition showing in substance that it has operated a system of street railroads in the city of Indianapolis since the year 1902, charging for the carriage of passengers five cents when paid as a single cash fare; six tickets for twenty-five cents; twenty-five tickets for one dollar, with transfer privileges; that by reason of an emergency brought on by war activities in this country, the cost of every item entering into the operation and upkeep of the relator's business has increased so amazingly that without financial relief the relator must face insolvency, also rendering it unable to furnish reasonably adequate service to its patrons and to the injury of the interests of the people of the city of Indianapolis, and public generally depending upon street railway service. To meet this emergency the relator has asked permission to charge and collect from each passenger over five years of age carried upon its lines five cents, with transfer privileges as now in use, until the further order of the commission. To this petition the city of Indianapolis and various organizations and citizens of that city were permitted to intervene and enter special appearances before the commission, and object to the commission hearing said petition on the ground that it had no jurisdiction over the matter set forth in the petition. The commission sustained these objections and dismissed the petition. The relator then brought this proceeding in mandamus to compel the commission to take jurisdiction of the matter presented by the petition. Appellees' demurrer to the complaint was sustained, and, the relator refusing to plead further, judgment followed in favor of appellee. The ruling of the trial court on the demurrer to the complaint is here assigned as error. It is first insisted that the city of Indianapolis is a necessary party to this action for the reason that it is |