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Town of Miller, Township of Hobart v. (Ind. App.)....

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Walukewich v. Boston & N. St. Ry., two cases (Mass.).. Ward, Coggan v. (Mass.).




Ward, Terre Haute Brewing Co. v. (Ind.
Ward v. Tuttle (Ind. App.).
Ward, Zeman v. (Ill.).




Town of Nahant, Sears v. (Mass.).
Town of North Hempstead v. Oelsner (N.

Town of Oyster Bay, Tiffany v. (N. Y.)... 585
Town of Pelham v. Shinn (N. Y.). ..1115
Town of Whitestown v. Title Guaranty &
Surety Co. (N. Y.)...
Town of Winthrop v. Athol (Mass.). . . 900
Township of Hobart v. Miller (Ind. App.) 847
Township of Wayne, Jay County, Cincin-
nati, R. & Ft. W. R. Co. v. (Ind. App.)... 865
Tracy v. State (Ohio).
Travelers' Ins. Co., of Hartford, Conn., Bo-
haker v. (Mass.)..
Treadwell, Shipman v. (N. Y.).
Treadwell, Shipman v. (N. Y.)..

Tressler, City of Toledo v. (Ohio).
Tripler, White v. (Mass.)
Trotter v. Lisman (N. Ý.)..

Troy Gas Co., Caruso v. (N. Y.).
Truesdell v. Bourke (N. Y.)..


Trump Mfg. Co., Sanderson v. (Ind.).



Warden of City Prison, Borough of Brook-
lyn, People ex rel. Gill v. (N. Y.)......1110
Warden of City Prison, City of New York,
People ex rel. Domens v. (N. Y.)... .1110
Warden of City Prison, People ex rel.
Howey v. (N. Y.).............

575 Watson, Curless v. (Ind.).. .1100 Webber v. Landrigan (Mass.) .1115 Webber, State v. (Ind.)


Trust Co. of America, People v. (N. Y.)... 578

Turner, Grubb v. (Ill.).

Turner, People v. (Ill.).
Turner v. State (Ohio).

Turner's Will, In re (N. Y.).
Tuttle v. Boston (Mass.).
Tuttle, State v. (Ohio).


Tuttle, Ward v. (Ind. App.)..

Underwood, White v. (Mass.).

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

.1110 Warfield v. Adams, three cases (Mass.)... 706 Warne, Judy v. (Ind. App.). 386 634 Warren, People v. (Ill.). 1113 Washburn, Stafford v. (N. Y.).. .1121 Waterbury Co., Specht v. (N. Y.). 426 Watson v. Armstrong (Ind.).








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810 Weber, City of Chicago v. (Ill.). .1036 Wegg, Bradford v. (Ind. App.)


.1134 Wegmann v. Kress (N. Y.)..

.. 845 ...1117


297 Weigel, In re (N. Y.)..


405 Weilbacher, Hatten v. (Ohio). Weiss, Carr v. (Mass.)..



Union Cent. Life Ins. Co. v. Bell (Ohio)..1134 Union Nat. Savings & Loan Ass'n, Adams v. (Ind. App.)..

Welch, Cleveland City Forge & Iron Co. v. (Ohio)....


Weld v. Clarke (Mass.)



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Union Sav. Bank & Trust Co. v. Dreifus (Ohio)


Wells Fargo Exp. Co., Cohn-Goodman Co. v. (Ohio)...


United Shoe Machinery Co.,

Strout v.



United States Brewing Co. v.

Dolese &

Shepard Co. (Ill.).


United States Fidelity & Guaranty Co. v.

Western Ins. Co. v. Ashby (Ind. App.). Western Ohio R. Co., Incorporated Village of Bluffton v. (Ohio). ..1125 Western Paper Stock Co., Nakwosas v. (Ill.)..




Poetker (Ind.).


United States Mortgage & Trust Co., An

Western Straw Board Co., Variety Iron Works Co. v. (Ohio).


derson v. (Ohio)...


Weston, Harmon v. (Mass.)


United States Trust Co. of New York v.

Wetmore v. Henry (Ill.).


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Wheatcraft v. Wheatcraft (Ind. App.)..... 42 Wheeler, Guernsey Coal & Mining Co. v.



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.1117 W. H. Small & Co. v. Schultz (Ind. App.) 275 Wickersham, Herrold_v. (Ind. App.)... 845 Wiegand, Massillon Iron & Steel Co. v. (Ohio). .1127 Wier v. American Locomotive Co. (Mass.) 481 Wilder v. Taylor (Ohio). Wildman v. Jones (N. Y.). Wiley, Young v. (Ind. App.). Willard Hospital, Read v. (Mass.). Willey, Bello v. (N. Y.).......... Williams v. Milton (Mass.). Williamson, Croker v. (N. Y.) Willis, Dickey v. (Mass.).









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(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

(No. 22,072.)

(Supreme Court of Indiana. June 5, 1913.) 1. TRIAL (§ 139*)-TAKING QUESTION FROM JURY-SUFFICIENCY OF EVIDENCE.

Where the direct evidence most favorable to the plaintiff, together with the facts reasonably inferable from it, in connection with uncontroverted facts, would have warranted a verdict for the plaintiff, the direction of a verdict for the defendant is erroneous.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.*]


The doctrine of res ipsa loquitur does not apply to a common-law action against a master for injuries to a servant caused by a gas explosion, where the action is not predicated upon the violation of some statute which absolves the servant from the consequences of contributory negligence and assumption of risk.

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


Where a servant was injured by an explosion of gas while measuring the depth of oil in a tank through a manhole, the failure of the master to install a gauge by which the depth of the oil could be determined without opening the manhole was not the proximate cause of the injury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*]


Where the complaint for injuries to a servant caused by an explosion of gas in an oil tank alleged that the gas was ignited from a locomotive or from a smokestack belonging to the master, and there was no proof of the ignition from either source, it was not error to instruct the jury to return a verdict for the de

the injury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*]

Appeal from Circuit Court, Monroe County; J. B. Wilson, Judge.

Action by Milton L. Dickason against the Indiana Creosoting Company. Judgment for defendant on a directed verdict, and plaintiff appeals. Affirmed.

Transferred from Appellate Court under section 1405, Burns' Ann. St. 1908.

W. H. Martin and H. P. Pearson, both of Bedford, and Ira Batman and H. C. Duncan, both of Bloomington, for appellant. John B. Elam, James W. Fesler, and Harvey J. Elam, all of Indianapolis, and J. E. Henley and R. H. East, both of Bloomington, for appellee.

MORRIS, J. This was a common-law action by appellant for personal injuries for alleged negligence.

There are four paragraphs of complaint. It is alleged that appellee operated a plant for creosoting cross-ties, and appellant was one of its employés; that the plant was, among other things, equipped with a nontransparent metal cylindrical tank 30 feet high and 30 feet in diameter, with a top covered with sheet metal, containing a manhole 2 feet in diameter, with a loose metal covering therefor; that the tank was used to receive and store creosote oil taken from oil tanks on railway cars; that it was located within a distance of from 15 to 50 feet from the tracks of a railway, and about 25 feet distant from defendant's smokestack; that sparks were emitted from the smokestack and from locomotive engines on the railway which were liable at any time to ignite gas and cause an explosion; that the oil was pumped from the storage tank, to other tanks connected therewith, by pipes; 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 deFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes


[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053; Dec. Dig. § 285.*] 5. MASTER AND SERVANT (§ 129*)-INJURIES TO SERVANT-PROXIMATE ČAUSE.

gauge, but he might have been in a more dangerous location. There is no causal connection between the injury and the failure to install a gauge. City of Franklin v. Smith, 175 Ind. 236, 93 N. E. 993, and cases cited.

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 oil gave off an inflammable gas, which was liable to be ignited by sparks, but appellant was ignorant of said facts; that immediately prior to the injury appellant, at appellee's order, was engaged in pumping oil from the storage tank to other tanks on the premises; that the oil was heated, but ceased flowing from the storage tank, and appellant, in the line of his duties, climbed, by means of a ladder, to the top of the storage tank, removed the manhole covering, and was preparing to insert the line and weight to ascertain the amount, if any, of oil, that remained in the tank, when the tank exploded with great force and caused serious injury to appellant; that the explosion was caused by gas generated from the oil in the storage tank.

[4] There was no direct evidence that the gas was ignited by sparks from the smokestack; nor was there any evidence given from which such fact might have been fairly and reasonably inferred.

The plaintiff testified that just before the explosion he heard cinders rattling on top of the tank, but he said they did not come from the smokestack, and there was no train in the vicinity. There was no evidence given from which the jury would have been warranted in inferring that the gas was ignited by cinders or sparks from the smokestack or railway locomotive.

[5] There was no causal connection between the explosion and the failure to install a thermometer. Under the evidence, the jury would not have been warranted in

In the fourth paragraph it is alleged "that the gas in said storage tank on which he [appellant] was standing in some way unknown to plaintiff, instantly exploded." In other paragraphs negligence is specific-finding that the explosion was caused by ally charged against appellee in four paragraphs, viz.: in locating the tank too near the railroad; (2) locating it too near the smokestack; (3) in failing to provide the tank with an oil gauge; (4) in failing to provide the tank with a thermometer.

A demurrer to each paragraph of complaint was overruled. The cause proceeded to trial, and the hearing of evidence adduc ed by plaintiff was concluded. On motion of defendant the court instructed the jury to find for defendant. The giving of the peremptory instruction is the sole error relied on.

[1] If the direct evidence most favorable to plaintiff, together with facts reasonably and fairly inferable from them, taken in connection with uncontroverted facts, would have warranted a finding for plaintiff by the jury, the action of the trial court was erroneous; otherwise it was not.

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[2] It is contended by appellant that the doctrine of res ipsa loquitur applies, and that defendant is liable, because the accident resulted from a gas explosion, even though the cause thereof was unknown. This contention cannot prevail. The doctrine of res ipsa loquitur cannot ordinarily be invoked in a common-law action by a servant against the master. National Biscuit Co. v. Wilson, 169 Ind. 442, 82 N. E. 916, and cases cited. Where the cause of action is predicated on the violation of a statute which absolves the servant from the consequences of contributory negligence and assumed risk, the doctrine may be invoked.

gas pressure, and would have been warranted only in finding that the explosion was caused by ignition of the gas. A thermometer would have performed no function in preventing gas ignition.

The only sources of ignition alleged were the smokestack and railway There was no proof of either. locomotives.

A valid recovery must be based on facts alleged in the the peremptory instruction. complaint. There was no error in giving Judgment affirmed.

(180 Ind. 197)


(No. 21,593.)1

(Supreme Court of Indiana. May 27, 1913.) 1. SALES (§ 439*)-Warranty-Collateral AGREEMENT.

Since a warranty in a sale of goods is not an essential element of the contract but a collateral agreement, the seller in an action for the price is not bound to show fulfillment of warranties; but the burden of showing their existence and breach is on the buyer, whether he sues for breach of warranty directly or sets it up by way of set-off or counterclaim.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1258-1260; Dec. Dig. § 439.*] 2. SALES (§ 250*)-WARRANTIES-MACHINERY


Where a contract for the installation of water power machinery in an electric plant indicated an intention of the parties that title should vest in the buyers on delivery, and there was nothing to indicate an intention of the buyers to rescind and return the chinery after it had been delivered, set up,

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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