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highway crossings, and to exercise like care to runs north and south in Grant county; that avoid accidents, and, to that end, to use ordinary appellant's railroad at said place runs in a care in apprehending and acting on danger sig-northwesterly and southeasterly direction


[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 981; Dec. Dig.



On appeal, where it is contended that the evidence was insufficient to support the verdict, only that most favorable to the appellee will be


[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3755, 3756, 3758; Dec. Dig. 930(1).]


Evidence held sufficient to warrant recovery for damage to a traction engine on a crossing, when struck by defendant's train, although plaintiff was originally negligent, where such negligence did not contribute to the cause of the injury, which was defendant's negligent failure to watch or regard warnings given in time.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1144, 1149; Dec. Dig. 348(6).] 8. TRIAL 140(1)-PROVINCE OF JURY-CRED IBILITY OF WITNESS.

It is for the jury to determine the credibility of defendant's engineer's explanation of his failure to regard a warning given by plaintiff, and consequent damage to plaintiff's property. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 334; Dec. Dig. 140(1).]


Regardless of defendant railroad fireman's opinion whether he was compelled to heed white warning lights, it was for the jury to say whether he was negligent in failing to regard such a light, and an instruction that he need not do so was properly refused as invading the province of the jury.

[Ed. Note. For other cases, see Trial, Cent. Dig. 466; Dec. Dig. 194(17).]

Appeal from Circuit Court, Howard County; William C. Purdum, Judge.

Action by David S. Pence against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff on the complaint and cross-complaint, and defendant appeals. Transferred from Appellate Court under Burns' Ann. St. 1914, § 1405. Affirmed.

G. E. Ross, of Logansport, for appellant. Blacklidge, Wolf & Barnes, of Kokomo, and Condo & Browne, of Marion, for appellee.

MORRIS, J. Action by appellee for damages for injuries to his traction engine and clover huller that were struck by appellant's passenger train at a public highway crossing. Appellant filed a cross-complaint against appellee for injury to its train by the same accident. Appellant's demurrer to the complaint was overruled. Trial by jury, with verdict and judgment for appellee on the complaint and cross-complaint. Error is assigned here on the ruling on demurrer and on the overruling of appellant's motion for a new trial.

and crosses the highway at an angle of 45 degrees; that at the intersection appellant maintained a crossing consisting of planks 16 feet long, laid parallel with the rails and below the level of the tops thereof; that the crossing was elevated 3 feet above the level of the highway, with sloping approaches only 10 feet wide, commencing about 12 feet from the track; that at and prior to the time of the accident-October 28, 1911-appellant was running a regular passenger train daily from Muncie to Converse on a schedule that required the train to pass the crossing at 6:10 p. m.; that the train, on the day of the accident, reached the crossing at said time. The complaint then proing at said time.

ceeds as follows:

"That about 5:30 o'clock p. m. of said date the plaintiff was driving his said traction engine with said clover huller attached on said gravel road, and was going south towards said crossing; that he then drove his said traction engine up said steep grade and onto said railroad track, but that, when the wheels of said engine struck the rails of said track, said wheels skidded and started said engine southeasterly down said track, instead of following directly across the traveled portion of said crossing; that plaintiff stopped said engine, tried to back the same up, and turn it onto the traveled portion of said crossing so as to cross said railroad, but, owing to the narrowness of said approach to said crossing and the narrowness of the traveled portion of said crossing and said highway on the right of way of the defendant, it was impossible for the plaintiff to move said engine back from said railroad track without backing and running the same off of said traveled highway approach to said track and into a deep gutter on the west side thereof, and thereby ruining said engine and the clover huller thereto attached; that plaintiff then

bitched or was about to hitch a team of horses to the rear of said clover huller, attempting thereby to pull said engine off of said track, but no sooner had he done so than he saw defendant's train then due at said crossing approaching the same from the southeast within the distance of from 1 to 2 miles therefrom; that from the point plaintiff first observed said train until it reached said crossing said train was moving at the rate of about 30 miles per hour; that it was then impossible for plaintiff to pull said engine and clover huller off of said track before said train would have reached said crossing, and it was impossible for plaintiff to extricate his said property from said position of danger before said train would have reached said crossing, and would have run upon and against the same and have caused the injury hereinafter mentioned and averred; that it was dark at said time, and the headlight on defendant's engine which pulled said train was lighted, and plaintiff immediately lighted his lantern and ran down said track toward said train for the distance of about 40 rods and flagged said train by swinging said lighted lantern across said track repeatedly until said train reached the place where the plaintiff was standing.

"Plaintiff says further that the engine of said train was in charge of an engineer and fireman employed by defendant; that the track from the point where said train first appeared to plaintiff's view to said crossing was straight, almost The complaint alleges that a public high-level, and the defendant's view to said crossing way known as the Taylor Creek gravel road i was unobstructed, and that plaintiff was stand

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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seen by the light of the headlight and the position and condition of the engine and huller for two or three minutes before the

ing in front of said train as it approached at
the time he flagged it and tried to cause said
train to come to a stop before reaching said
crossing. But plaintiff says that the said fire-
man and engineer on said train negligently, reck-collision, and in time to have stopped the
lessly, and carelessly disregarded, overlooked, and train, before reaching the crossing, but neg-
paid no attention to plaintiff in his efforts to ligently failed to stop it or slacken its speed;
flag and stop said train or to the said warning
given by the plaintiff to stop said train before it that appellee, 40 rods from the crossing,
reached said crossing, and that the said defend- warned appellant's servants of the danger
ant at said time knew, or by the exercise of by repeatedly swinging a lighted lantern
ordinary care ought to have known, that plain- across the track; that the warning was dis-
tiff's said property was on said crossing in said
dangerous and perilous situation, and that de- regarded, though at said time appellant knew,
fendant negligently, recklessly, and carelessly or ought to have known, in the exercise of
ran said train without checking its speed down ordinary care, that appellee's property was
to and upon said crossing and against and upon on the crossing in a perilous situation.
said traction engine, and did negligently, reck-
lessly, and carelessly mash, crush, tear to pieces, While the complaint is not commended as a
destroy, and throw said traction engine off of the model of pleading, we are of the opinion
said railroad track and onto the right of way that its direct averments, aided by fair in-
adjoining to the distance of several feet, and did ference, sufficiently charge appellant with
so injure and destroy said traction engine that
the same is not now, and has not been since it actionable neglect of a particular duty to
was so struck of any value whatever; that when appellée.
said collision occurred said clover huller, which
was connected with said traction engine, was
jerked, upset, mashed, broken, destroyed, and
rendered of no value whatsoever, and that all of
said injury to said traction engine and clover
huller was proximately caused by the said reck-
less, careless, and negligent acts of the defendant
and its said servants, and not otherwise: that
the defendant had two or three minutes in which
to observe plaintiff's property in said position,
but paid no heed for the safety of said property,
and carelessly, negligently, and recklessly ran
into the same as aforesaid; that the headlight on
defendant's engine at said time was lighted, and
the position and condition of plaintiff's said
property was visible and apparent to the defend-
ant and its servants in time to stop said train
before reaching said crossing, and that defend-
ant, by the exercise of ordinary care, could have
stopped said train before reaching said crossing,
whereby, and because of the aforesaid negligence
of the defendant and its servants, this plaintiff
has suffered damages in the sum of $2,500; that
the plaintiff was at all times heretofore alleged
free from negligence, and that the said injuries
and damages to plaintiff's property occurred
without any fault or negligence upon the part of
the plaintiff.

"Wherefore plaintiff prays judgment against the defendant for damages in the sum of $2,500 and for all other proper relief."

The sufficiency of the complaint is vigorously assailed by appellant. Appellee conAppellee contends that it is sufficient to repel a demurrer when considered on the theory of the pleader as invoking the application of the last clear chance doctrine; that, if subject to criticism for failure to make direct averments of some facts, it is nevertheless good if resort be had to fair inference. Domestic Block Coal Co. v. De Armey (1913) 179 Ind. 592, 601, 100 N. E. 675, 102 N. E. 99.

[1, 2] In its demurrer memorandum appellant states that the complaint alleges no specific duty of appellant to appellee, or violation thereof. It is the duty of railroad companies in the operation of their roads to use ordinary care to avoid injury to any person or property at a highway crossing. The complaint alleges that the property was on the track, and could not be removed by appellee before the train's arrival; that appellant's servants in control of the same, in

[3, 4] It is insisted that the complaint affirmatively shows appellee's contributory negligence. Assuming that the complaint does show negligence of appellee in the first instance, in getting his engine in the perilous situation, appellee may recover notwithstanding, if the complaint alleges sufficient facts to warrant the application of the last clear chance doctrine, and we are of the opinion that the facts averred are such as to justify the invocation of such principle. Even if the appellee was negligent in getting his engine fast on the track, there was, under the allegations here, a subsequent duty devolving on appellant to exercise ordinary care to avoid injury to the property. Indianapolis, etc., Co. v. Kidd, 167 Ind. 402, 411, 79 N. E. 347, 7 L. R. A. (N. S.) 143, 10 Ann. Cas. 942, and authorities cited; Indianapolis Traction, etc., Co. v. Croly (1913) 54 Ind. App. 566, 96 N. E. 973, 98 N. E. 1091.

[5] It is the duty of those running a locomotive engine to exercise ordinary care in looking ahead to discover persons or objects on the tracks at highway crossings, and to exercise like care to avoid accidents, and, to that end, to use ordinary care in apprehending and acting on danger signals. A lack of such care, proximately causing injury, may entitle the injured party to relief, regardless of his antecedent negligence, and regardless of the lack of actual knowledge of the peril, by the party causing the injury. Indianapolis Traction, etc., Co. v. Croly, supra, 54 Ind. App. on page 583, 96 N. E. 973, 98 N. E. 1091.

[6-8] It is contended that the evidence is insufficient to support the verdict. On such claim a court of review considers only the evidence most favorable to appellee. So considered, the jury was warranted in finding that the train consisted of a locomotive, tender, combination baggage and passenger coach, and passenger coach, and was running 35 miles per hour; that appellee's barn, where there were harnessed horses, was near the crossing; that appellee vainly attempted to get his engine off the track by its own pow

to stop or pay attention to ordinary white lights on the railroad track." There was no error in the refusal. The requested instruction clearly invaded the province of the jury. Regardless of the fireman's opinion, it was for the jury to determine, under the evidence, whether there was negligence in disregarding a warning light, whether white or red.

Error is predicated on the court's refusal to give instructions numbered 1, 13, 16, and 18, requested by appellant. Without setting them out, it is sufficient to say that when each of them is considered with reference to instructions given there was no reversible error in the court's action.

It is contended that each of a number of instructions given by the court was erroneous. We have examined them, and are of the opinion that there was no harmful error. Judgment affirmed.

(62 Ind. App. 456)

ROBINSON v. HORNER. (No. 8944.) (Appellate Court of Indiana, Division No. 1. June 22, 1916.)

task, sent his wife down the track, in the di- Appellant's fireman, Harper, testified on rection of the approaching train, waiving a cross-examination that "they are not required lighted lantern, while he procured a team of horses from the barn and hitched them to the huller attached to the engine in an attempt to thereby pull the engine and huller off the track; that thereupon he saw the headlight of the approaching train, and ran down the track about 20 rods, grabbed the lighted lantern from his wife's hand, and ran ahead 20 rods further waiving the lighted lantern to and fro across the track; that when he reached a point 40 rods from the crossing the approaching train was so close he was obliged to step aside, but as the locomotive passed him he shouted a warning of danger to the engineer, and the latter heard it; that the train could have been stopped in a distance of 40 rods; that its speed was not materially slackened before its Impact with the engine and huller; that the latter were damaged in an amount as great as that of the verdict; that the engineer saw the waving lantern light on the track while the train was more than a mile from the crossing; and that the headlight on the engine threw light on the track sufficient to enable the engineer to discern a man 300 feet in front of the locomotive. There was evidence that warranted the jury in finding that after appellee's negligence, relating to the position of peril in which his property was placed, had ceased, appellant was guilty of negligence which proximately caused the injury, and that appellee was guiltless of negligence proximately contributing thereto. Appellant sought to explain the disregard of the lantern warning by the evidence of the engineer, who testified that he saw the lantern light on the track, but thought it was a light at Rich's flag station, a half mile northwest of the crossing. It was for the jury to determine what credit should be given the engineer's explanation, or, if fully credited, to find that, nevertheless, the engineer was negligent in mistaking the location of the warning signal. Moreover, it was warranted in finding that, even if the lantern gave no light, the engineer, when 58 rods from the crossing, saw appellee waving something across the track as a signal of danger, and that after such discovery the train could have been stopped before it reached the crossing. There was sufficient evidence to support the verdict.

[9] Error is claimed on the court's refusal to give appellant's requested instruction No. 15, reading as follows:

"The law imposed no duty upon the defendant's servants and employés in charge of and operating its passenger train to stop such train or even to slacken the speed of such train merely upon seeing an ordinary white light on the track; neither does it require, as suggested in a question propounded by counsel for plaintiff to the witness Harper, the fireman on said train, that they investigate every light seen upon the track. I repeat to you that the law makes no such exaction."


Where the appellant in his brief states sevattempt to apply them to particular rulings, exeral abstract legal propositions, but makes no cept to state that the decision of the court is not sustained by sufficient evidence, the sufficiency of the evidence is the only question presented.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. m 1011(1).1 2. APPEAL AND ERROR 768 REVIEW QUESTIONS OF FACT-CONFLICTING EVI


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quire the reviewing courts to weigh the evidence
Though Burns' Ann. St. 1914, § 698, re-
when required by the assignments of error,
where the evidence is in part oral, and there is
a conflict therein, the reviewing court will not
weigh it.

Error, Cent. Dig. § 3103; Dec. Dig. 768.]
[Ed. Note.-For other cases, see Appeal and

Appeal from Superior Court, Tippecanoe
County; I. E. Schoonover, Special Judge.

Action by Alfred C. Robinson against Cornelius M. Horner. From a judgment for defendant, plaintiff appeals. Affirmed.

C. Robert Pollard and Charles R. Pollard, both of Delphi, and Charles E. Thompson and Charles V. McAdams, both of Lafayette, for appellant. Stuart, Hammond & Simms, of Lafayette, and Emory B. Sellers, of Monticello, for appellee.

MCNUTT, J. This is a second appeal of this case. The action was begun in the White circuit court at the September term, 1904, and the venue changed to the court below. Appellant withdrew his first paragraph of complaint. A demurrer was sustained to each of the remaining two para

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the only question presented by appellant's brief is the one challenging the sufficiency of the evidence to support the decision of the trial court.

graphs. By leave of court, the plaintiff filed Under said authorities, we must hold that what is termed a second amended third paragraph of complaint, to which a demurrer was sustained. Thereupon appellant refused to plead further, and elected to stand upon the second paragraph and the second amended third paragraph of his complaint. Judgment was rendered against appellant from which he appealed to this court. The cause was transferred to the Supreme Court, which held that the lower court erred in sustaining the demurrer to each of said paragraphs, holding that each of said paragraphs stated a cause of action against appellee; the court saying: "The character of this action and the theory upon which the complaint proceeds is a suit in equity by one partner to compel his copartner to account. We think that each of the paragraphs to which a demurrer was sustained was sufficient in facts to put appellee upon his answer, and that the court therefore erred in sustaining a demurrer thereto."

See Robinson v. Horner, 176 Ind. 226, 234, 95 N. E. 561.

To this complaint appellee filed an answer in two paragraphs: (1) A general denial; (2) an answer of settlement of the affairs of the partnership and a payment by appellee to appellant of the full amount of plaintiff's interest in said partnership business before the bringing of this action. The issues were closed by a reply by appellant to the second paragraph of answer in general denial.

Appellant assigns in this court two errors, one of which is the overruling of his motion for a new trial.

Appellee has filed a motion to dismiss this appeal because of the failure of appellant to comply with the first and fifth clause of rule 22 of the rules of this court in the preparation of his brief: First, in failing to state the nature of the action; and, second, in failing to refer in his points and authorities to a point or question arising in this case. This motion was filed on August 8, 1914. Action on the motion was, by this court, postponed until final hearing. Appellant has taken no steps to file a brief presenting other questions involved in his assignment of errors. We are of the opinion that appellant has, in substance, stated the nature of the action in his brief, but, as heretofore stated, has made only one point, which he assigns in support of his motion for a new trial, namely, that the decision of the court is not sustained by sufficient evidence.

[2] Appellant earnestly insists that it becomes the duty of this court to weigh the evidence introduced in this case as provided by the Acts of 1903 (Acts 1903, p. 338; section 698, Burns 1914) which reads:

"In all cases not now or hereafter triable by a jury, the supreme and appellate courts shall, if required by the assignment of errors, carefully consider and weigh the evidence and admissions heard on the trial when the same is made: to appear by a bill of exceptions setting forth all appeal it appears from all the evidence and adthe evidence given in the cause, and if on such missions that the judgment appealed from is not fairly supported by, or is clearly against the weight of the evidence, it shall be the duty of clear weight of the evidence, and affirm the judgsuch court to award judgment according to the ment or return said cause to the trial court with instructions to modify the judgment or to grant a new trial; or to enter such other judgment or decree as to such court of appeal may seem

[1] Appellant has no heading of "a concise statement of so much of the record as presents every error and exception relied on," in his brief, as provided by clause 5, rule 22 of this court (55 N. E. vi); but he does set out his motion for a new trial, which contains separate grounds or reasons therefor. In that part of his brief under "Points and Authorities," appellant states seven abright and proper upon the whole case." stract legal propositions, which may have some application to one or more of the rulings assigned as error, and intended to be relied for a reversal; but no attempt is made to apply any particular one of the many assigned, as a cause for a new trial, except possibly "that the decision of the court is not sustained by sufficient evidence." "Mere abstract statements of law or fact, or both, unless applied specifically to some particular ruling or action of the court, although contained in appellant's statement of points, present no question." Chicago, etc., R. Co. v. Dinius, 180 Ind. 596, 627, 103 N. E. 652, 663; Leach v. State, 177 Ind. 234, 97 N. E. 792; Pittsburgh, etc., R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033; Inland Steel Co. v. Smith, 168 Ind. 245, 80 N. E. 538; Weidenhammer v. State, 181 Ind. 349, 103 N. E. 413, 104 N. E. 577, and cases there cited; Palmer v. Beall, 110 N. E. 218, and authorities cited.

This case comes within the provisions of said section of the statute. There are many decisions of the Supreme Court construing said section, and it has been decided that where the evidence is in part oral, and there is a conflict in such evidence, this court will not weigh the evidence. Parkison v. Thompson, 164 Ind. 609, 73 N. E. 109, 3 Ann. Cas. 677; Hudelson v. Hudelson, 164 Ind. 694, 74 N. E. 504; Berkey, Gdn., v. Rensberger, 49 Ind. App. 226, 96 N. E. 32.

A considerable part of the evidence upon which the decision of the trial court in this case was based was oral, and, under said authorities, we cannot weigh the evidence. It follows that the judgment must be affirmed.

Judgment affirmed.

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(62 Ind. App. 481)

leged to be in appellant's possession and unHILLEL v. JULIUS H. BUETTNER FUR- lawfully detained by her. To this complaint NITURE & CARPET CO.

(No. 9050.)

(Appellate Court of Indiana, Division No. 2.
June 23, 1916.)



Under Burns' Ann. St. 1914, § 585, subsec. 6, that the judgment is clearly against the weight of the evidence is not ground for a new trial, and such a specification presents nothing for review.

appellant filed her verified answer in general
denial. A trial by the court resulted in a
general finding and judgment for appellee.
Appellant's motion for new trial was over-
ruled, and this is assigned as error.
motion was based on a number of grounds.
Those argued are:


weight of the evidence. (2) The finding of the (1) "The judgment is clearly against the court is not sustained by the evidence. (3) Error of the court in admitting in evidence a certain written article of agreement supposed to have been entered into betwen the plaintiff and the husband of defendant, bearing date of April

[Ed. Note.-For other cases, see New Trial,
Cent. Dig. §§ 146-148; Dec. Dig. 72.]
2. APPEAL AND ERROR 302(5)-PRESENTING 15, 1911."

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Under Burns' Ann. St. 1914, § 585, subsec.
6, a motion for new trial on the ground that the
"finding" is not sustained by the evidence, when
the trial was by the court, sufficiently presents
for review the weight of the evidence to sup-
port the "decision."

[Ed. Note. For other cases, see Appeal and
Error, Cent. Dig. §§ 1744, 1752; Dec. Dig.


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[Ed. Note.-For_other cases, see New Trial,
Cent. Dig. § 261; Dec. Dig. 128(5).]
Evidence in a replevin action for furniture
obtained under a conditional sale contract held
to sustain the trial court's findings that the con-
tract had been broken by nonpayment of install-
ments and removal of the furniture.

[1] The first specification is not a statutory ground for a new trial, and therefore presents no question for review. Burns 1914, § 585, subsec. 6.

[2] In the second specification the word "finding" is used instead of the word "decision"; but it has been held that the former word is equivalent to the word used in the statute, when the cause has been tried by the court, so that the ground for a new trial in the form here appearing properly presents the question for a review of the evidence. Bump v. Sellers, 54 Ind. App. 146, 102 N. E. 875, and cases cited.

[3] The assignment that the decision "is not sustained by the evidence," is in effect equivalent to the assignment that the decision "is not sustained by sufficient evidence."

[4, 5] The facts as they appeared from the evidence are that the appellee is a furni[Ed. Note.-For other cases, see Sales, Cent. ture dealer, and appellant's husband, N. HilDig. 1427; Dec. Dig. 479(7).] lel, who has since died, obtained possession 5. SALES 479(7)—CONDITIONAL SALE-RE- of the furniture in question by virtue of a COVERY OF GOODS-EVIDENCE-ADMISSIBIL- contract of conditional sale, by the terms of In a replevin action, plaintiff could introduce a conditional sale contract, executed by defendant's deceased husband as buyer, to show its breach of the contract and defendant's wrongful possession of the property.


[Ed. Note.-For other cases, see Sales, Cent. Dig. 1427; Dec. Dig. 479(7).]

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which he was to pay the sum of $184.80 in weekly installments, of $2 each. Appellee was to retain title and the right to recover possession on default of the purchaser. The Contract contains the further condition that in case of the violation by N. Hillel of other provisions of the contract, among which is that in case of sale or disposal, or an attempt to sell or dispose of the property, or removal of the same by N. Hillel or any one else from the then place of residence of the mortgagor, then appellee might take the property into its possession. There is evidence also from which the trial court could very properly infer that appellant's husband Action by the Julius H. Buettner Furni- executed the instrument relied on by appelture & Carpet Company against Etta Hillel. lee, and that she knew of that fact; and the Judgment for plaintiff, and defendant ap-tained possession of the same property on evidence is uncontradicted that appellant repeals. Affirmed.

Where the possession of personal property
is wrongful, no demand for its return is neces-
sary before bringing a replevin suit.

[Ed. Note. For other cases, see Replevin,
Cent. Dig. §§ 89, 91-95; Dec. Dig. 11(3).]

Appeal from Superior Court, Lake County;
Virgil S. Reiter, Judge.

the death of her husband, in their home in Marcus Hershcovitz, of Indiana Harbor, St. Louis, Mo. There is some evidence, confor appellant. James W. Brissey, of In-tradicted, it is true, which shows that at diana Harbor, for appellee.

IBACH, J. Appellee brought this action for replevin for certain household goods al

the time of the death of appellant's husband he was in default of his payments and that she never made any payments after his death. There is also some evidence tending

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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