(N.

Page

Page Town of Miller, Township of Hobart v. Walts, Sprague v. (N. Y.).

..1113 (Ind. App.)......

847 Walukewich v. Boston & N. St. Ry., two Town of Nahant, Sears v. (Mass.). 494 cases (Mass.).

311 Town of North Hempstead v. Oelsner (N. Ward, Coggan v. (Mass.).

336 Y.)

. 1115 Ward, Terre Haute Brewing Co. v. (Ind. Town of Oyster Bay, Tiffany v. (N. Y.)... 585 App.)..

395 Town of Pelham v. Shinn (N. Y.)........1115 Ward v. Tuttle (Ind. App.).

405 Town of Whitestown v. Title Guaranty & Ward, Zeman v. (Ill.).

..1066 Surety Co. (N. Y.)...

.1115 Warden of City Prison, Borough of BrookTown of Winthrop v. Athol (Mass.). ..... 900 lyn, People ex rel. Gill v. (N. Y.)......1110 Township of Hobart v. Miller (Ind. App.) 847 Warden of City Prison, City of New York, Township of Wayne, Jay County, Cincin- People ex rel. Domens v. (N. Y.)... .1110

nati, R. & Ft. W. R. Co. v. (Ind. App.)... 865 Warden of City Prison, People ex rel. Tracy v. State (Ohio). ..1134 Howey V. (N. Y.).....

.1110 Travelers' Ins. Co., of Hartford, Conn., Bo

Warfield v. Adams, three cases (Mass.). 706 haker v. (Mass.). 342 Warne, Judy v. (Ind. App.).

386 Treadwell, Shipman v. (N. Y.).. 634 Warren, People v. (Ill.).

201 Treadwell, Shipman v. (N. Y.). . 1113 Washburn, Stafford v. (N. Y.).

1114 Tressler, City of Toledo v. (Ohio).

.1121 Waterbury Co., Specht v. (N. Y.)..... 569 Tripler, White v. (Mass.) 426 Watson v. Armstrong (Ind.).

273 Trotter v. Lisman (N. Y.).. 575 Watson, Curless v. (Ind.)...

497 Troy Gas Co., Caruso v. (N. Y.). 1100 Webber v. Landrigan (Mass.)

460 Truesdell v. Bourke (N. Y.)... ...1115 Webber, State v. (Ind.)...

961 Trump Mfg. Co., Sanderson v. (Ind.). 2 Webber Lumber & Supply Co. v. Erickson Trust Co. of America, People v. (N. Y.)... 578 (Mass.)

940 Turner, Grubb v. (I11.). 810 Weber, City of Chicago v. (Ill.)

.1001 Turner, People v. (Ill.). ..1036 | Wegg, Bradford v. (Ind. App.)

845 Turner v. State (Ohio) 1134 Wegmann v. Kress (N. Y.).

.1117 Turner's Will, In re (N. Y.).

1115 Weidinger v. New York & New England Tuttle v. Boston (Mass.). 350 Cement & Lime Co. (N. Y.)....

.1117 Tuttle, State v. (Ohio). 297 Weigel, In re (N. Y.)..

.1113 Tuttle, Ward v. (Ind. App.).. 405 Weilbacher, Hatten v. (Ohio).

...1125 Weiss, Carr v. (Mass.).

906 Underwood, White v. (Mass.)...

426 Welch, Cleveland City Forge & Iron Co. v. Union Cent. Life Ins. Co. v. Bell (Ohio). .1134 (Ohio)..

.1121 Union Nat. Savings & Loan Ass'n, Adams Weld v. Clarke (Mass.)

422 V. (Ind. App.).. 145 Weld, Jaffe v. (N. Y.).

.1104 Union Say. Bank & Trust Co. V. Dreifus Wells Fargo Exp. Co., Cohn-Goodman Co. (Ohio) ...1134 v. (Ohio)...

.1122 United Shoe Machinery Co., Strout v. Western Ins. Co. v. Ashby (Ind. App.). 45 (Mass.)..

312 Western Ohio R. Co., Incorporated VilUnited States Brewing Co. V. Dolese & lage of Bluffton v. (Ohio).

...1125 Shepard Co. (Ill.)..

753 Western Paper Stock Co., Nakwosas v.

| United States Fidelity & Guaranty Co. v.

(Ill.)..

..1041 Poetker (Ind.)...

372 | Western Straw Board Co., Variety Iron United States Mortgage & Trust Co., An- Works Co. v. (Ohio).

.1134 derson v. (Ohio).. ..1118 Weston, Harmon v. (Mass.)

470 United States Trust Co. of New York V. Wetmore v. Henry (Ill.)

189 Hart (N. Y.)....

. 1115 Wheatcraft v. Wheatcraft (Ind. App.)..... 42 Updike, Tharp v. (Ind. App.).

855 Wheeler, Guernsey Coal & Mining Co. v. (Ohio).

1124 Vahey, Shea v. (Mass.). 119 Wheeler, People v. (Ill.)...

188 Valentine, First Commercial Bank of Pon- Whidden & Co. v. Jordan (Mass.)

436 tiac v. (N. Y.)... 544 Whipple Co., Foley v. (Mass.).

84 Val Trainor v. White Rats Actors' Union Whitcomb v. New York, N. H. & H, R. of America (N. Y.)..

Co., two cases (Mass.).

663 Van Kleeck v. New York (N. Y.). .1116 White, City of Cleveland v. (Ohio). .1121 Van Ness v. Kenyon (N. Y.)...

...1116 White v. Cleveland, two cases (Ohio).....1135 Van Zant, Stolzenbach Baking Co. v.

White, Crane v. Mass.)..

705 (Ohio).... .1133 White v. Hubbard (Mass.)

426 Vapinski v. Tosetti (Ind. App.). 51 White, McLean v. (Mass.).

929 Variety Iron Works Co. v. Western Straw White v. Shippee (Mass.).

948 Board Co. (Ohio). .1134 White v. Tripler (Mass.).

426 Variety Iron & Steel Works Co., Smith v. White v. Underwood (Mass.)..

426 (N. Y.)

.1113 White Oak Coal Co. v. Rivoux (Ohio). 302 Ventriniglia v. Eichner (N. Y.).. .1116 White Rats Actors' Union of America, Val Vibbard v. Kinser Const. Co. (N. Y.).....1116

Trainor v. (N. Y.)...

..1116 Vick v. Peterson (N. Y.). .1116 Whitham v. Ellsworth (Ill.).

223 Village of East Peoria, Mushbaugh v. Whitmore y. International Fruit & Sugar (I11.)..

.1027
Co. (Mass.).

59 Village of Girard, Gibbs v. (Ohio).. 299 Whittaker v. New York Cent. & H. R. R. Village of River Forest, Waller v. (Ill.).. 290 Co. (N. Y.).

.1117 Village of South Newburgh, Cleveland & W. H. Small & Co. v. Schultz (Ind. App.) 275 P. R. Co. v. (Ohio)...

1122 Wickersham, Herrold v. (Ind. App.). 845 Vose v. Conkling (N. Y.)......

.1116 Wiegand, Massillon Iron & Steel Co. v. (Ohio)...

.1127 Wabash R. Co. v. Copelin (Ohio).........1134 Wier v. American Locomotive Co. (Mass.) 481

) Wabash R. Co. v. Grate (Ind. App.)..... 155 Wilder v. Taylor (Ohio).

.1135 Wabash R. Co. v. Yeager (Ohio)... .1134 Wildman v. Jones (N. Y.).

.1117 Walda v. Ft. Wayne & W. V. Traction Co. Wiley, Young v. (Ind. App.)..

54 (Ind. App.) 978 Willard Hospital, Read v. (Mass.)

95 Waldo, People ex rel. Cottrell v. (N. Y.). .1109 Willey, Bello v. (N. Y.)....

.1099 Waller v. River Forest (Ill.). 290 Williams v. Milton (Mass.).

355 Walsh v. Joline (N. Y.). .1116 Williamson, Croker v. (N. Y.)

588 Walsh, Ohio Creamery & Supply Co. v. Willis, Dickey v. (Mass.).

336

.1116

Page

Page Wilson v. Ford (N. Y.).

614 Worcester Consol. St. R. Co., Bousquet Wilson v. Mitchell-Woodbury Co. (Mass.) 119 v. (Mass.)...

.. 907 Wilson, People v. (111.).. .1055 Wray v. State (Ohio).

..1135 Wilt v. Board of Com’rs of Morgan County Wright v. First Nat. Bank (Ohio). ..1135 (Ind. App.). 878 Wright v. McConnell (N. Y.).

..1117 Winchell v. Winchell (I11.).

Wuerdeman Co., Ziegler v. (Ohio). ..1135 Wing v. Deans (Mass.)..

313 Winslow, Natural Autoforce Ventilator Co. Yeager, Wabash R. Co. v. (Ohio). ..1134 v. (Mass.)). ...

705 York & Whitney Co., New York, N. H. & Wise, Wood' v. (N. Y.). 1117 H. R. Co. v. (Mass.)...

366 W. M. Pattison Supply Co., American Young v. Haviland (Mass.).

338 Sand Co. v. (Ohio).. 1118 Young v. Ingalsbe (N. Y.)..

590 Wolf, Harmon v. (Ohio). 1125 Young v. Wiley (Ind. App.).

54 Wolf, Myers v. (Ohio). .

.1128 Youngstown Sheet & Tube Co., Robertson Wolffberg, Gorlitzer v. (N. Y.).. 528 v. (Ohio)...

..1130 Wolkovisky v: Rapaport (Mass.).

910 | Youngstown & S. St. R. Co. v. Tecau Wood, Erie R. Co. v. (Ohio)..

1123
(Ohio)

..1135 Wood v. Wise (N. Y.)..

...1117 Young Women's Christian Ass'n of BrookWoodard v. Woodard (Mass.) 921 lyn, In re (N. Y.)...

1118 Woodbury, People ex rel. New York Cent. & H. R. R. Co. v. (N. Y.).. 565 Zeis, Knepper v. (Ohio).

.1126 Woodbury, People ex rel. New York Cent. Zeman v. Ward (Ill.)...

..1066 & H. R. R. Co. v. (N. Y.)...

566 Ziegler v. Wuerdeman Co. (Ohio).. .1135 Woodsmall v. State (Ind.). 130 Zoborosky v. State (Ind.)...

825

THE

NORTHEASTERN REPORTER

VOLUME 102

(179 Ind. 640)

to install a thermometer to measure the tempera. DICKASON v. INDIANA CREOSOTING CO. ture of the oil was not the proximate cause of

the injury. (No. 22,072.)

[Ed. Note.-For other cases, seè Master and (Supreme Court of Indiana. June 5, 1913.) Servant, Cent. Dig. $8 257–263; Dec. Dig. $ 1. TRIAL ($ 139*)-TAKING QUESTION FROM 129.*] S

] JURY-SUFFICIENCY OF EVIDENCE.

Where the direct evidence most favorable Appeal from Circuit Court, Monroe Counto the plaintiff, together with the facts reason- ty; J. B. Wilson, Judge. ably inferable from it, in connection with un

Action by Milton L. Dickason against the controverted facts, would have warranted a Indiana Creosoting Company. Judgment for verdict for the plaintiff, the direction of a verdict for the defendant is erroneous.

defendant on a directed verdict, and plain[Ed. Note. For other cases, see Trial, Cent. tiff appeals. Affirmed. Dig. $8 332, 333, 338–341, 365; Dec. Dig. 8 Transferred from Appellate Court under 139.*]

section 1405, Burns' Ann. St. 1908. 2. MASTER AND SERVANT (8 265*)-INJURIES TO SERVANT-NEGLIGENCE OF MASTER.

W. H. Martin and H. P. Pearson, both of The doctrine of res ipsa loquitur does not | Bedford, and Ira Batman and H. C. Duncan, apply to a common-law action against a master both of Bloomington, for appellant. John for injuries to a servant caused by a gas ex: B. Elam, James W. Fesler, and Harvey J. plosion, where the action is not predicated upon the violation of some statute which absolves the Elam, all of Indianapolis, and J. E. Henley servant from the consequences of contributory and R. H. East, both of Bloomington, for apnegligence and assumption of risk.

pellee. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 877-908, 955; Dec. Dig. § 265.*]

MORRIS, J. This was a common-law ac8. MASTER AND SERVANT ($ 129*)-INJURIES tion by appellant for personal injuries for TO SERVANT-PROXIMATE CAUSE.

alleged negligence. Where a servant was injured by an ex- There are four paragraphs of complaint. plosion of gas while measuring the depth of oil It is alleged that appellee operated a plant in a tank through a manhole, the failure of the for creosoting cross-ties, and appellant was of the oil could be determined without opening one of its employés; that the plant was, the manhole was not the proximate cause of the among other things, equipped with a noninjury.

transparent metal cylindrical tank 30 feet [Ed. Note. For other cases, see Master and high and 30 feet in diameter, with a top

. 129.*]

covered with sheet metal, containing a man

hole 2 feet in diameter, with a loose metal 4. MASTER AND SERVANT ($ 285*)-INJURIES

TO SERVANT-NEGLIGENCE OF MASTER-FAIL- covering therefor; that the tank was used URE OF PROOF.

to receive and store creosote oil taken from Where the complaint for injuries to a serv- oil tanks on railway cars; that it was loant caused by an explosion of gas in an oil cated within a distance of from 15 to 50 tank alleged that the gas was ignited from a locomotive or from a smokestack belonging to feet from the tracks of a railway, and about the master, and there was no proof of the igni- 25 feet distant from defendant's smokestack; tion from either source, it was not error to in that sparks were emitted from the smokestruct the jury to return a verdict for the de- stack and from locomotive engines on the fendant.

[Ed. Note. For other cases, see Master and railway which were liable at any time to Servant, Cent. Dig. $$ 1002, 1003, 1007, 1008, ignite gas and cause an explosion; that the 1016, 1035, 1043, 1053; Dec. Dig. § 285.*] oil was pumped from the storage tank, to 6. MASTER AND SERVANT ($ 129*)-INJURIES other tanks connected therewith, by pipes; TO SERVANT-PROXIMATE CAUSE.

that it was necessary to heat the oil before Where the complaint in an action for per- it could be pumped, which was done by sonal injuries alleged that gas was generated in means of metal coils located in the storage an oil tank when the oil was heated, but there was no evidence that the explosion of the gas tank; that the tank was not provided with was due to pressure, the failure of the master any thermometer, by means of which to de

termine the temperature of the oil contained | Indiana Union Traction Co. V. Abrams, 101 therein, neither was it provided with any N. E. 1. gauge for determining the depth of the oil [3] The lack of a gauge was not the proxin the tank, which was ascertainable only imate cause of the injury.

It is true apby measurement with a line and weight pellant would not have had occasion to go dropped by an operator through the man- on top of the tank, if there had been a hole. It is alleged that when heated the gauge, but he might have been in a more oil gave off an inflammable gas, which was dangerous location. There is no causal conliable to be ignited by sparks, but appel- nection between the injury and the failure lant was ignorant of said facts; that im- to install a gauge. City of Franklin v. mediately prior to the injury appellant, at Smith, 175 Ind. 236, 93 N. E. 993, and cases appellee's order, was engaged in pumping cited. oil from the storage tank to other tanks on

[4] There was no direct evidence that the the premises; that the oil was heated, but gas was ignited by sparks from the smokeceased flowing from the storage tank, and stack; nor was there any evidence given from appellant, in the line of his duties, climbed, which such fact might have been fairly and by means of a ladder, to the top of the reasonably inferred. storage tank, removed the manhole cover

The plaintiff testified that just before the ing, and was preparing to insert the line explosion he heard cinders rattling on top and weight to ascertain the amount, if any, of the tank, but he said they did not come of oil, that remained in the tank, when the from the smokestack, and there was no train tank exploded with great force and caused in the vicinity. There was no evidence given serious injury to appellant; that the explo- from which the jury would have been warsion was caused by gas generated from the ranted in inferring that the gas was ignited oil in the storage tank.

by cinders or sparks from the smokestack or

railway locomotive. In the fourth paragraph it is alleged "that

[5] There was no causal connection bethe gas in said storage tank on which he [appellant] was standing in some way un-tween the explosion and the failure to in

stall a thermometer. Under the evidence, known to plaintiff, instantly exploded.”

In other paragraphs negligence is specific- the jury would not have been warranted in ally charged against appellee in four para- finding that the explosion was caused by graphs, viz.: in locating the tank too near gas pressure, and would have been warthe railroad; (2) locating it too near the ranted only in finding that the explosion smokestack; (3) in failing to provide the was caused by ignition of the gas. A thertank with an oil gauge; (4) in failing to mometer would have performed no function provide the tank with a thermometer.

in preventing gas ignition.

The only sources of ignition alleged were A demurrer to each paragraph of com: the smokestack and railway locomotives. plaint was overruled. The cause proceeded There was no proof of either. A valid reto trial, and the hearing of evidence adduc.

covery must be based on facts alleged in the ed by plaintiff was concluded. On motion

complaint. There was no error in giving of defendant the court instructed the jury

the peremptory instruction. to find for defendant. The giving of the

Judgment affirmed. peremptory instruction is the sole error relied on. [1] If the direct evidence most favorable

(180 Ind. 197) to plaintiff, together with facts reasonably

SANDERSON et al. v. TRUMP MFG. CO. and fairly inferable from them, taken in

(No. 21,593.) 1 connection with uncontroverted facts, would (Supreme Court of Indiana. May 27, 1913.) have warranted a finding for plaintiff by 1. SALES ($ 439*)-WARRANTY-COLLATERAL the jury, the action of the trial court was

AGREEMENT. erroneous ; otherwise it was not.

Since a warranty in a sale of goods is

not an essential element of the contract but a [2] It is contended by appellant that the collateral agreement, the seller in an action doctrine of res ipsa loquitur applies, and for the price is not bound to show fulfillment that defendant is liable, because the acci- of warranties; but the burden of showing dent resulted from a gas explosion, even whether he sues for breach of warranty di

their existence and breach is on the buyer, though the cause thereof 'was unknown. rectly or sets it up by way of set-off or counThis contention cannot prevail. The doc- terclaim. trine of res ipsa loquitur cannot ordinarily

[Ed. Note.-For other cases, see Sales, Cent. be invoked in a common-law action by a Dig. &$ 1258–1260; Dec. Dig.' $ 439.*] servant against the master. National Bis- 2. SALES (250*)-WARRANTIES–MACHINERY

-TESTS. cuit Co. v. Wilson, 169 Ind. 442, 82 N. E.

Where a contract for the installation of 916, and cases cited. Where the cause of water power machinery in an electric plant action is predicated on the violation of a indicated an intention of the parties that title statute which absolves the servant from the should vest in the buyers on delivery, and consequences of contributory negligence and the buyers to rescind and return the ma