suggestion of an apparent defect of parties requires consideration. It does not appear, however, that George R. Hayes was a party in the court below to the proceeding and judgment from which this appeal is prosecuted. The action of the court below disposed of the case, so far as that court had power to dispose of it, and was a final judgment, from which an appeal is authorized. Starkey et al. v. Starkey et al. (No. 20,653, decided February 16, 1906) 76 N. E. 876. Appellees' Appellees' motion to dismiss is overruled.

The board of commissioners, by virtue of section 5655 et seq., Burns' Ann. St. 1901, had unquestioned jurisdiction of the subjectmatter, and acquired jurisdiction of the parties by giving the notice therein required. The alleged want of jurisdiction in the court below is predicated upon the palpable disqualification of Mr. Taylor to act as a commissioner in this proceeding, and rests upon the assumption that his participation rendered the action of the board entirely void. If the participation of an interested member of the board so affects its jurisdiction as to make its judgment void, then the invalidity cannot be cured even by consent of the parties; but, if such improper action is a mere irregularity or error rendering such proceeding voidable only, then the disqualification and consequent error may be waived by failure to make seasonable objection to the same. The holdings of the courts of this country are not in entire harmony upon this question. The apparent conflict has arisen in part from the absence of express legislative provisions, as well as from the varying statutes of the several states upon the subject of the disqualification of judges and judicial tribunals. It is an ancient maxim of the law that no man should be a judge in his own cause, and this principle still prevails whereever judicial tribunals are maintained. Winters v. Coons, 162 Ind. 26, 69 N. E. 458. It is of such potent force that, under our Constitutions and enlightened sense of justice, a legislative act which should undertake to make a man arbiter of his own cause would be held void. Cooley's Const. Lim. (5th Ed.) §§ 403-410. At common law the disqualification of a judge because of interest in the subject-matter brought before him did not affect his jurisdiction, and his acting in the cause was regarded as a mere irregularity or error on account of which a timely recusation would afford ground for the reversal of his judgment upon appeal or writ of error. Freeman on Judgments, 145; Dimes v. Grand Junction Canal Co., 16 Eng. L. & Eq. 63; Trawick's Heirs v. Trawick's Adm'rs, 67 Ala. 271; McMillan v. Nichols, 62 Ga. 36, 38; Rhea's Succession, 31 La. Ann. 323; Gorrill v. Whittier, 3 N. H. 268; Ten . Eick v. Simpson, 11 Paige (N. Y.) 179; Chambers v. Hodges, 23 Tex. 104. In support of their contention that the proceedings in question were absolutely void, appellees' counsel cite cases from Michigan and California.

Section 7245, Howell's Annotated Etatutes of Michigan, provides that: "No judge of any court shall sit as such in any cause in which he is a party, or in which he is interested. or in which he would be excluded from being a juror by reason of consanguinity or affinity, to either of the parties." The Supreme Court of that state said upon this subject: "This statute, mandatory in its terms, voices the universal sentiment of mankind excluding judges from sitting in cases where they are parties or are interested. *** The authorities are numerous and nearly uniform which hold that a judgment or decree rendered by a judge contrary to a statute like ours is void, and may be attacked collaterally." Horton v. Howard, 79 Mich. 642, 44 N. W. 1112, 19 Am. St. Rep. 198. The decisions of the California Supreme Court rest upon a statute which reads as follows: "No justice, judge or justice of the peace shall sit or act in any action or proceeding: (1) To which he is a party, or in which he is interested." Section 170, Code Civ. Proc. Mr. Freeman, in his authoritative work on Judgments, has collected many cases, from which he announces the following conclusion: "But the general effect of the statutory prohibitions in the several states is undoubtedly to change the rule of the common law so far as to render those acts of a judge, involving the exercise of judicial discretion, in a case where he is disqualified from acting, not voidable merely, but void." Freeman on Judgments, § 146.

In the absence of prohibitory legislation, the question of the interest or bias of a judge is regarded as a private matter and of concern only to the parties to the action. But when constitutional or statutory provisions forbid a judge from acting officially, his action is regarded as transgressing the public policy of the state. Such prohibitions are plainly intended, not for the protection of the parties to a suit merely, but for the general interests of justice, by preserving the purity and impartiality of the courts, and the respect and confidence of the people for their decisions. No judgment is worthy to become a precedent which is tainted with a suspicion of unfairness, and the state is deeply interested in maintaining, so far as possible, an elevated place for its judiciary in the estimation of mankind. A party may induce a judge whom he knows to be interested in the result or related to his adversary to try his cause, and yet, when judgment is pronounced against him, murmur and complain. It is most appropriate and salutary that the Legislature should by the enactment of suitable statutes prohibit the wearers of the judicial ermine from serving in any case wherein their judgment might be biased by interest or kinship. In jurisdictions where such statutes exist, a violation of their provisions, when manifest from the record, renders the proceedings void. Fechheimer v. Washington, 77 Ind. 366; Chambers v. Hodges, 23 Tex.

104; Horton v. Howard, 79 Mich. 642, 44 N. W. 1112, 19 Am. St. Rep. 198; People ex rel. v. Jose Ramon, etc., 24 Cal. 73; Hall v. Thayer, 105 Mass. 219, 7 Am. Rep. 513.

A

There is no statute in this state relating to the disqualification of commissioners and prohibiting them from serving in matters in which they are interested. IIence their action is governed by common-law principles. proper sense of propriety should in all cases prevent a member from acting in any proceeding to which he is a party, but if, disregarding such disqualification in a matter over which the board has jurisdiction of the subject and the parties, he does participate in rendering a judgment from which an appeal is allowed, his act and the action of the board will not be void, but only voidable. Board, etc., v. Justice et al., 133 Ind. 89, 30 N. E. 1085, 36 Am. St. Rep. 528; Rogers v. Felker, 77 Ga. 46; Wilson v. Smith (Ky.) 38 S. W. 870; State v. Ross, 118 Mo. 23, 23 S. W. 196; Fowler v. Brooks, 64 N. H. 423, 13 Atl. 417, 10 Am. St. Rep. 425. In cases where the disqualification of the judge renders the proceeding voidable merely and not void, it may be waived by consent' of parties. The disqualification of Taylor as a commissioner in this proceeding was disclosed by the record and known to the parties. It was appellees' duty, if they desired to object to his acting because of interest, to make such objection at the earliest opportunity, and thereby prevent the accumulation of needless costs and the attainment of a fruitless result. If a party, knowing of a valid objection to a proceeding, neglects to avail himself of it, and stands by or participates therein until a result is reached adverse to his interests. it is but justice that he should bear the consequences which his own folly has suffered to occur. Appellees made no objection, but knowingly acquiesced in the appointment of viewers and in Taylor's subsequent participation in the proceedings and final judgment. The board should have been given an opportunity to correct its own errors while the matter was before it. Appellees' silent acquiescence in the action of the board, as shown by the record, was a waiver of the disqualification of Taylor, complained of for the first time on appeal. Moses v. Julian, 45 N. H. 52, 84 Am. Dec. 114; Shope v. State, 106 Ga. 226, 32 S. E. 140; Thomas v. Jones, 64 Ga. 139; Stone v. Marion, 78 Iowa, 14, 42 N. W. 570; Pettigrew v. Washington County, 43 Ark. 33; Ex parte Hilton, 64 S. C. 201, 41 S. E. 978, 92 Am. St. Rep. 800; Stearns v. Wright, 51 N. H. 600, 610; Smith v. Amiss, 30 Ind. App. 530, 66 N. E. 501; Du Quoin Water Works Co. v. Parks, 207 Ill. 46, 69 N. E. 587; Case v. Hoffman, 100 Wis. 356, 72 N. W. 390, 74 N. W. 220, 75 N. W. 945, 44 L. R. A. 728.

It follows that the court erred in sustaining appellees' motion and in remanding the cause to the board of commissioners without a trial.

The judgment is reversed with directions to overrule appellees' motion to remand, and for further proceedings in accordance with this opinion.

(167 Ind. 83)

TISDALE v. STATE. (No. 20,731.) (Supreme Court of Indiana. June 26, 1906.) 1. CRIMINAL LAW-APPEAL-RECORD-BRIEFSUFFICIENCY.

Where one appealing from a conviction of crime on the ground of the insufficiency of the evidence failed to comply with Supreme Court rules 3 and 22 (55 N. E. iv, v), providing that, when the evidence is set out in the record, the name of each witness shall be stated in the margin, etc., and requiring the brief of appellant to contain a statement disclosing the errors, etc., and failed for four months to take any steps to comply with the rules after the Attorney General had objected to the consideration of the case on that account, no question was presented on appeal.

2. SAME-DISMISSAL OF APPEAL..

Where the year allowed for taking an appeal from a conviction of crime had not expired, the court on hearing the cause on appellant's record and brief not complying with Supreme Court rules 3 and 22 (55 N. E. iv, v), the court will dismiss the appeal instead of affirming the judgment.

Appeal from Circuit Court, Gibson County; O. M. Welborn, Judge.

Finis Tisdale was convicted of crime, and he appeals. Dismissed.

Thomas Duncan, for appellant. C. W. Miller, Atty. Gen., Geo. W. Curtis, Pros. Atty., W. C. Geake, C. C. Hadley, and H. M. Dowling, for the State.

MONKS, J. Appellant was convicted of the crime of rape, and final judgment rendered against him on August 26, 1905. By his counsel he contends: (1) That the verdict of the jury is contrary to the law and the evidence. He admits the act of intercourse, but insists that the evidence did not show such resistance on the part of the prosecuting witness as the law requires to sustain a charge of rape. (2) That there was no proof that the alleged offense was committed in Gibson county, Ind., as alleged in the indictment. For these reasons he insists that this court should "give him another trial."

The Attorney General contends that appellant has not complied with rules 3 and 22 of this court (55 N. E. iv, v), and is therefore not entitled to have said questions considered or determined on this appeal. Said rule 3 requires, among other things, that: "When the evidence is set out (in the record), the name of each witness and whether the examination is direct, cross, or redirect, shall be stated on the margin of each page and shall prepare an index referring to the initial page of the direct, cross, and re-examination, of each witness." Said rule 22 requires that: "The brief of appellant shall contain a short and clear statement disclosing

Third. How the is

sues were decided and what the judgment or decree was. Fourth. The errors relied upon for a reversal. Fifth. A concise statement of so much of the record as fully presents every error and exception relied on, referring to the pages and lines of the transcript." Appellant has wholly failed to comply with. the parts of said rules above set out, or any of them, nor has he made any attempt to do so. The Attorney General's brief, objecting to the consideration of said questions on account of appellant's failure to comply with said rules, was filed the 24th of last January, but appellant has for more than four months ignored the same and has taken no steps to comply therewith. It has been uniformly held that when a party fails to comply with the requirements of said rules, or any of them, that he waives the error, if any was committed. Ewbank's Manual, §§ 118. 119. 182, and cases cited; Elliott's App. Proc. § 440; City of South Bend v. Turner, 163 Ind. 194, 195, 196, 71 N. E. 657, and cases cited; Chicago, etc., R. Co. v. Wysor Land Co., 163 Ind. 288, 293, 294, 69 N. E. 546, and authorities cited; McElwaine-Richards Co. v. Wall, 159 Ind. 557, 559, 65 N. E. 753; M. S. Huey Co. v. Johnston, 164 Ind. 489. 498, 73 N. E. 996; Buehner Chair Co. v. Feulner, 164 Ind. 3GS, 375, 73 N. E. 816; Penn Mutual Life Ins. Co. v. Norcross, 163 Ind. 379, 12 N. E. 132; Schreiber v. Worm, 164 Ind. 7. 72 N. E. 852; Welch v. State ex rel., 164 Ind. 104, 107, 108, 72 N. E. 1043; Garrigue v. Kellar, 164 Ind. 676, 687, 74 N. E. 523, 69 L. R. A. 870: Wolverton v. Wolverton, 163 Ind. 26, 29, 30, 71 N. E. 123.

It follows that there are no questions presented for our determination. As the year allowed for taking an appeal from the judgment of the court below has not expired, we have concluded to dismiss this appeal instead of affirming the judgment. Appeal dismissed.

(167 Ind. 85)

INDIANA UNION TRACTION CO. v. JACOBS. (No. 20,873.) (Supreme Court of Indiana. June 27. 1906.) 1. CARRIERS-INJURY TO PASSENGER-l'LEADING-COMPLAINT.

In an action against a street railroad for injuries to a passenger, the complaint alleged that defendant negligently and carelessly failed to provide a platform or safe and convenient place and means of leaving the car at the point where it was stopped for plaintiff to alight, and that it negligently failed to stop the car at the usual place, but ran it to a point where there was a distance of about two or three feet from the step to the ground, negligently informed plaintiff when the car stopped that she had arrived at her destination, and failed to assist her in alighting. Held, that in respect to the failure to provide a platform in the street, and in running the car beyond the usual place, the complaint showed no cause of action, but the remaining allegations taken together constituted a showing of negligence.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1273, 12751.1

2. SAME-QUESTION FOR JURY-CONTRIBUTORY NEGLIGENCE.

In an action for injuries to a passenger on alighting from a car, evidence considered and held, that the question of contributory negligence was for the jury.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, § 1402.]

3. DAMAGES-PLEADING-EVIDENCE-SPECIAL

DAMAGES.

In an action for personal injuries, aggravation of an existing condition is not special damages, and need not be specially pleaded in order to admit of evidence thereof.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, §§ 441, 442.]

4. APPEAL-PRESENTATION OF QUESTION ON TRIAL-SUFFICIENCY OF EVIDENCE.

Where testimony was received in respo:ise to a hypothetical question, on undertaking of counsel to follow up the question by proof of facts sustaining the hypothesis, a question as to whether such facts had been shown could only be reviewed on appeal by saving the question by a motion, after plaintiff had rested her case, to strike out the answer.

5. EVIDENCE - DECLARATIONS PHYSICAL CONDITION.

In an action for personal injuries, plaintiff's attending physician testified that on he night of the accident he was called, and, being asked to describe plaintiff's condition, sta ed that he found her in bed, and that she told m that she had an injured ankle. Held, that it was proper to overrule a motion to strike the answer as to what plaintiff said, as the deciaration was evidently but introductory to the witness' treatment of the case and made to one competent to judge as to its truth or falsi y. 6. CARRIERS-INJURY TO PASSENGER - EIDENCE-SUFFICIENCY.

In an action against a street railroad company for injuries to a passenger, a witness or defendant testified that he was employed by lefendant and in charge of the car in question. Held, that the jury was warranted in finding that the car was operated by defendant. 7. APPEAL-REVIEW-INVITED ERROR.

An appellant cannot complain of an erroneous instruction, where the error was invited by an instruction tendered by him.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3602.]

8. TRIAL-INSTRUCTIONS-IGNORING ISSUES. In an action for injuries, the court instructed, after referring to the issues, that, if plaintiff had proved the material allegations of the complaint, "then she is entitled to recover." The jury were charged in other instructions that contributory negligence would defeat a recovery, and that, while the burden of proving it was on defendant, it might be made out by plaintiff's evidence. And other instructions which were framed on lines not essentially different from the first instruction were qualified by the statement that plaintiff was entitled to recover, unless contributory negligence was shown by a preponderance of the evidence. He'd, that the first instruction was not erroneous for ignoring contributory negligence, as the jury could not have been misled.

9. CARRIERS-INJURY TO PASSENGER-COVTRIBUTORY NEGLIGENCE-LEAVING CONVEYANCE.

A passenger on a street car has a right, when the car stops for him to alight, to assu:ne that the car has been stopped at a place where by the exercise of due care he may alight in safety.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1385, 1388.]

Appeal from Circuit Court, Hamilton County; Ira W. Christian, Judge.

Action by Charlotte Jacobs against the Indiana Union Traction Company. From a judgment in favor of plaintiff, defendant appealed. Transferred from the Appellate Court under Burns' Ann. St. 1901, § 1337u. Affirmed.

Jas. A. Van Osdol, W. A. Kittinger, and Kane & Kane, for appellant. Gavin & Davis and Gentry & Cloe, for appellee.

GILLETT, J. Suit by appellee against appellant for injuries received by her while attempting to alight from appellant's interurban car, in a public street in the town of Arcadia. Appellant was defeated below, and it assigns as error the overruling of its demurrer to the complaint, and the overruling of its motion for a new trial.

The charges of negligence in said complaint are as follows: "That said defendant negligently and carelessly failed to provide a platform or other safe and convenient place and means of entering and leaving said car, at the point where said car was stopped by said defendant, for said plaintiff to alight from said car, and that said defendant negligently and carelessly failed to stop said car at the usual place provided by said defendant at said town of Arcadia for passengers to enter upon and leave said cars, and negligently and carelessly ran said car beyond said usual place for stopping the same, for receiving and discharging passengers, to a point where there was a distance, namely, 3 or 31⁄2 feet from the lowest step on said car to the ground, and where said ground was uneven and unfit as a place for passengers to alight from said car, and negligently and carelessly informed said plaintiff at the point said car was stopped that she had arrived at her destination where she was to leave the car at said point, and said defendant negligently and carelessly failed to assist her in alighting from said car." It is alleged that it was dark at the time, that plaintiff supposed that the car was standing at the usual place for discharging passengers, that she did not know that the distance was so great, and that she believed that she could safely alight. In respect to the failure to provide a platform in the street, and in running the car beyond the usual place, the complaint fails to disclose a cause of action, but the remaining allegations, taken together, make a sufficient showing of negligence. It is not alleged that the defendant caused the street to be defective, and it is urged that the complaint is insufficient because of the failure to aver knowledge, actual or constructive, on the part of appellant, of said condition. If this were a suit against the municipality, the case being one of omission, the objection would be well taken, as knowledge in such a case is a constituent element in the duty owing. But in a case like this, where the facts disclose a direct and immediate duty to carry safely, growing out of the relation of carrier and

passenger, we are of opinion that it is permissible to charge negligence in general terms. Turner v. City of Indianapolis, 96 Ind. 51; Town of Spiceland v. Alier, 98 Ind. 467; Cleveland, etc., R. Co. v. Wynant, 100 Ind. 160; Pittsburgh, etc., R. Co. v. Adams, 105 Ind. 151, 5 N. E. 187; Wabash R. Co. v. De Hart, 32 Ind. App. 62, 65 N. E. 192; note to King v. Oregon Short Line R. Co. (Idaho) 59 L. R. A. 209.

It is contended by counsel for appellant that appellee was guilty of contributory negligence. It appears from the evidence that on the 23d day of March, 1904, appellee took passage on one of appellant's interurban cars for her home in the town of Arcadia. The car was a limited one, and it arrived at Arcadia as it was growing dark. The conductor announced the town as the car approached appellee's destination. The car did not stop at the intersection of Main street, where appellee might have alighted in safety, but it stopped a few feet beyond. At this point appellant had made a considerable excavation, for the purpose of putting gravel under its ties, with the result that the roadway was in such a condition that for a passenger to alight at said point he would be required to step down from 30 to 36 inches. Appellee resided on the street occupied by appellant's tracks, about one block block from Main street. She admitted that she knew that the street had been torn up for some months by the building of the railroad, but she testified that she had not been near the point where the car stopped in months, except as she went away that morning, and that she had not paid any attention to conditions there. She further testified that she noticed that morning that the roadway was uneven, but that she did not know that the railroad had not been completed, or that the track had not been ballasted. She was 58 years of age, and her eyesight, while as good as that of most persons of her age, had failed somewhat, so that she had to wear glasses, but she was still able to pursue her vocation, which was that of a seamstress. Her left foot was not as supple as the other, owing, as she testified, to the fact that the toes of her left foot had not fully developed, and this caused her to walk with a perceptible limp. There was no one present to assist her in alighting, and in stepping down, with her left foot first, she lost her balance and fell to the ground, owing to the fact that she misjudged the distance. There were lights burning dimly in the car, and as appellee came out on the platform it seemed dark to her. She testified: "I looked, and the distance seemed great to me. It appeared like it might be a foot and a half perhaps two feet. I am not very accurate in determining distances, but I thought by being careful-I was not in a hurry about getting off-by being careful that I could get down without any trouble. * * * I looked and hesitated. Looked up and down

the track to see if there was any one to assist me. I looked again, and it seemed nearer to me than when I first looked down. The ground seemed to be closer when I looked again." She further testified that she did not hurry, and that she thought by being careful she could get down without any trouble. We have no doubt, in the circumstances of this case, that the question whether appellee was guilty of contributory negligence was for the jury. It is unnecessary to enter into a discussion of the subject, for the authorities settle the question. Buehner Chair Co. v. Feulner, 164 Ind. 368, 73 N. E. 816 and cases cited; Pennsylvania Co. v. Marion, 123 Ind. 415, 23 N. E. 973, 7 L. R. A. 687, 18 Am. St. Rep. 330. And see particularly Town of Albion v. Hetrick, 90 Ind. 545, 46 Am. Rep. 230.

Appellant complains of a ruling of the court whereby appellee was permitted to show by her physician that if a woman who had been afflicted with rupture, but which had been cured, should receive a fall, in alighting from a street car, which seriously injured her ankle and strained her back, and the injury was followed by pains in the, back, such injury would have a tendency to aggravate the old malady with which she had been afflicted. While there is no averment in the complaint of an aggravation of a former malady, the allegations of the complaint, which are very comprehensive, are quite sufficient to admit evidence of such fact. Aggravation of an existing condition is not regarded, at least in this state, as special damages, and it is clear that, under the comprehensive allegations of injury which the complaint in this case contains, the proof was within the issues. Ohio, etc., R. Co. v. Hecht, 115 Ind. 443, 17 N. E. 297; Morgan v. Kendall, 124 Ind. 454, 24 N. E. 143, 9 L. R. A. 445; Heltonville Mfg. Co. v. Fields, 138 Ind. 58, 36 N. E. 529. It is urged that, at the time the hypothetical question was asked, the existence of the facts sustaining the hypothesis had not been shown. The evidence was received on the undertaking of appellee's counsel to follow up the question by proof of the facts. It appears to us that subsequently the facts were all testified to by appellee, but in any event the question could only have been saved by a motion, made after she had rested her case, to strike out the answer.

Appellant is in error in the assertion that there was no proof of a stiffening of appellee's fingers as a result of her grasp on the handrail breaking, and therefore the objection that these facts, which formed the basis of a further hypothetical question, were not proved, is not well taken.

Appellee's attending physician testified that on the night in question he attended upon her professionally. Being asked to describe her condition, he answered: "I found her in bed. She told me that she had an injured limb, an injured ankle." Appellant moved

to strike out the witness' answer as to what appellee said, and the overruling of this notion was assigned as a ground for a new trial. The declaration was evidently but introductory to the witness' treatment of the case, and it was made to one who was competent to judge whether it was false. Such statements are not regarded by the courts as resting on the plane of hearsay. Town of Elkhart v. Ritter, 66 Ind. 136; Cleveland, etc., R. Co. v. Newell, 104 Ind. 264, 3 N. E. 836, 54 Am. Rep. 312; Hewitt v. Eisenbart, 36 Neb. 794, 55 N. W. 252; Stewart v. Everts, 76 Wis. 35, 44 N. W. 1092, 20 Am. St. Rep. 17; Chapin v. Marlborough, 9 Gray (Mass.) 244, 69 Am. Dec. 281; Lush v. McDaniel, 35 N. C. 485, 57 Am. Dec. 566; Quaife v. Chicago, etc., R. Co., 48 Wis. 513, 4 N. W. 658, 33 Am. Rep. 821.

A number of minor points are made concerning rulings in appellee's favor relative to the admission of testimony offered by her. Without extending this opinion to discuss the rulings complained of in detail, we have to say that we are of opinion that appellant has no serious ground of complaint with reference to any of these, and that in no instance is there shown to be a ground of reversal growing out of a ruling on the evidence.

It is contended that it is not shown that the car was operated by appellant, the Indiana Union Traction Company. There is no evidence to the contrary, and, as the company was defending, we are of opinion that the jury was justified in concluding that that fact existed upon very slight implications. There was, at least, some evidence that appellant owned said road and was operating cars thereon. It appeared from the evidence of appellee that she made the trip from Tipton to Arcadia, arriving at the latter place about 7 o'clock in the evening, and a witness for appellant testified that he was in the "employment of the defendant, the Indiana Union Traction Company, on the 23d of March, 1904," and that he was "in charge of the defendant's car that made the run from Tipton, arriving at arcadia about 7 o'clock in the evening." Upon this state of the evidence we are of opinion that the jury, in the absence of anything to create the slight st implication to the contrary, was justified in finding that the car was operated by appellant, as charged in the complaint.

Complaint is made that the court instructed the jury that the plaintiff was not required to prove all of the acts of negligence alleged, but that it was sufficient if she proved any act of negligence charged in her complaint as the proximate cause of her injuries. The objection which is urged to this instruction is that in some particulars the acts coplained of by appellee did not constitute negligence. It appears to us, however, that by instruction No. 7, tendered by appellant and given by the court, the error was invited. Elliott, App. Pro. § 62; Ewbank's Manual, § 255.