Gonser v. State, ex rel.

township, and being unable to account to his successor, his sureties upon his most recent bond, under which he has neither paid out or received any money whatever, are to be charged because the crash of his failure was delayed until the demand to settle came.

In the case at bar the defaulting trustee violated the provisions of his bond when, upon the credit of his township, he borrowed the $800 and converted it to his own use. The township never at any time received credit for the money. The conversion and the default,-in fact the whole transaction,-happened while the first bond was in force, and the sureties thereon must be held for it. The trustee violated the terms of his bond when, in disregard of his duty, he loaned or invested in any way the funds which he held for the uses of the township. He might escape a civil action for the default of duty by returning the money, but he could not in such manner escape the prosecution for the crime committed. §2019 Burns 1901.

The reasoning in the case of Winchester Electric Light Co. v. Veal, 145 Ind. 506, would lead to the same conclusion. A township trustee's title to the public funds is recognized by the law only for the purpose and to the extent that is necessary to the better preservation of the funds, and not for the purpose of giving to the trustee the right to use the public funds for his private use and gain. He must be held liable upon the bond which was in force at the time the public funds were received and converted to his own use, or diverted from the use of the township. Inhabitants of Rochester v. Randall, 105 Mass. 295, 7 Am. Rep. 519; Vivian v. Otis, 24 Wis. 518, 1 Am. Rep. 199; Bissell v. Saxton, 77 N. Y. 191.

We find no error. Judgment affirmed.

Wampler v. House.

WAMPLER v. HOUSE.

[No. 4,299. Filed February 25, 1903.]

APPEAL.--Erroneous Instruction.-Harmless Error.-A cause will not be reversed because of an erroneous instruction, where the instructions considered as an entirety state the law correctly. p. 514. SAME.-Erroneous Instructions.-Harmless Error.-A cause will not be reversed because of an erroneous instruction, where it clearly appears that the substantial rights of the appellant were not af fected thereby. p. 514.

From Knox Circuit Court; W. H. De Wolf, Special Judge.

Action by John D. Wampler against Ellis House for damages for obstructing a watercourse. From a judgment for defendant, plaintiff appeals. Affirmed.

W. A. Cullop and G. W. Shaw, for appellant.

J. T. Goodman, B. M. Willoughby and J. M. House, for appellee.

WILEY, J.-Appellant sued appellee to recover damages alleged to have been occasioned by obstructing a natural watercourse, and thus diverting water on to his lands, to his injury. Verdict and judgment for appellee. Appellant's motion for a new trial was overruled, and such ruling is the only error assigned. The first, second, and fifth reasons for a new trial are waived by a failure to discuss them.

Appellant's entire argument is addressed to the third and fourth causes for a new trial, which question the correctness of certain instructions. The court gave a series of instructions of its own motion; gave all the instructions requested by appellant, and one instruction requested by appellee. The only instructions that are attacked are numbers two, four, five, eight, and nine, given by the court on its own motion, and the one requested by the appellee. VOL. 30-33.

Wampler v. House.

A careful consideration of the instructions as a whole, ap plied to the evidence, has led us to the conclusion that they correctly state the law. The instruction given at the request of the appellee, standing alone, can not be approved as a correct statement of the law, for it simply states an abstract proposition, and is not complete within itself, as applied to the evidence.

It has many times been affirmed in this jurisdiction that instructions must be considered as an entirety, and not separately or in dissected parts, and if, when so considered, they state the law correctly, a cause will not be reversed, even if some of the instructions, considered alone, may seem incorrect. Cromer v. State, 21 Ind. App. 502; Todd v. Danner, 17 Ind. App. 368; Mendenhall v. Stewart, 18 Ind. App. 262; Baltimore, etc., R. Co. v. Spaulding, 21 Ind. App. 323; Deilks v. State, 141 Ind. 23; Citizens St. R. Co. v. Merl, 26 Ind. App. 284; Cleveland, etc., R. Co. v. Penketh, 27 Ind. App. 210; Musser v. State, 157 Ind. 423.

It is also a rule of law that instructions are to be considered with reference to each other, and as an entirety, and not separately or in dissected parts; and if the instructions, as a whole, correctly and fairly present the law to the jury, even if some particular instruction, or some portion of an instruction, standing alone, or taken abstractly, and not explained or qualified by others, may be erroneous, it will afford no grounds for reversal. Shields v. State, 149 Ind. 395, and authorities there cited; Lofland v. Goben, 16 Ind. App. 67; Terre Haute, etc., R. Co. v. Lauer, 21 Ind. App. 466; Indianapolis Gas Co. v. Shumack, 23 Ind. App. 87; Maxon v. Clark, 24 Ind. App. 620; Gemmill v. Brown, 25 Ind. App. 6.

Considering all the instructions together, it fairly ap pears that the law was stated with substantial accuracy, as applied to the issues and the evidence, and that the jury could not have been misled. In such case it is no ground.

Indianapolis St. P. Co. v. Lawn.

for reversal, even though a particular instruction, or some detached portion thereof, may not be precisely accurate. Cooper v. State, 120 Ind. 377; Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218.

In view of these rules of law, we do not deem it necessary to take up separately the various instructions complained of, and thus consider them. We are satisfied that they do not present any reversible error. From a consideration of the whole record, it affirmatively appears that the trial court reached a correct conclusion. We are directed by the statute to disregard any "error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party," and are admonished that "no judgment can be reversed or affected by reason of such error or defect." $401 Burns 1901.

We are warranted in saying that the substantial rights of the appellant were not affected by the instructions of which he complains. Judgment affirmed.

INDIANAPOLIS STREET RAILWAY COMPANY v. LAWN.

[No. 4,345. Filed February 25, 1903.]

STREET RAILROADS.—Injury to Passenger.-Contributory Negligence.Where in an action against a street railway company for injuries sustained by a passenger while attempting to get off the car, it. appeared from the evidence that the car stopped for the purpose of discharging passengers, and before plaintiff alighted started again, the question of plaintiff's contributory negligence in continuing her attempt to alight after the car had started was properly submitted to the jury. pp. 516, 517. EVIDENCE.-Street Railroads.-Personal Injuries.-Appeal and Error.A judgment against a street railroad company for personal injuries can not be sustained on appeal, where there was no evidence, positive or circumstantial, that defendant owned or operated the road. pp. 517, 518.

APPEAL AND ERROR.-Bill of Exceptions.-Signature of Judge.-Designation of Court.-A bill of exceptions is not fatally defective because

Indianapolis St. R. Co. v. Lawn.

signed by the judge as "Judge of the Marion Superior Court," instead of "Judge of the Superior Court of Marion County." pp. 518, 519.

EVIDENCE.-Judicial Notice.-The Appellate Court takes judicial notice that a certain named person was one of the judges of the superior court of a county from which an appeal was taken at the date of the signing of the bill of exceptions. p. 519.

From Superior Court of Marion County; J. L. McMaster, Judge.

Action by Mary Lawn against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

F. Winter, Clarence Winter and W. H. Latta, for appellant.

P. W. Bartholomew and R. F. Stuart, for appellee.

COMSTOCK, J.-Appellee brought this action to recover damages for personal injuries alleged to have been received by her by the negligent starting of one of appellant's cars while she was alighting therefrom. The complaint was in one paragraph, and charged that the car upon which appellee was a passenger had stopped upon her signal at the corner of Washington and California streets, in the city of Indianapolis, for her to alight, and that while she was in the act of alighting, and had stepped, or was about to step, upon the running-board of such car, it was negligently and suddenly started, whereby she was thrown to the street and injured. A general denial was filed, and the cause submitted to a jury, which returned a verdict in favor of appellee for $1,000.

The error assigned is the overruling of appellant's motion for a new trial, and the reasons relied upon for a new trial are: (1) That the verdict of the jury is not sustained by sufficient evidence; (2) that the court erred in refusing to give instruction number one, requested by the defendant; and (3) in giving instruction number ten. Said instructions are as follows: "(1) If the car upon which the plaintiff was riding stopped at California street