Volume 72 — Indiana Appellate Court Reports

From Marion Probate Court (975); Mahlon E. Bash, Judge. Action by Edmond H. Kassing, administrator of the estate of William Bretthauer, absentee, against tbe Plymouth Saving and Loan Association No. 2. From a judgment for plaintiff, the defendant appeals. Reversed.

<p>1. Bills and Notes.—Promissory Note.—Oral Agreement as to Time of Payment.—Validity.—Where purchase money notes se- . cured by mortgage were payable at a specified date, an alleged oral agreement between the maker and payee at the time of delivery that the notes were not to become due and payable until certain sand had been removed from the mortgaged premises, was of no legal effect, since all oral stipulations between the parties, either preceding or accompanying the giving of the notes, are deemed merged therein, p. 26.</p> <p>2. Bills and Notes.—Promissory Notes.—Action.—Evidence.—Cor-, respondence Regarding Cancellation of Contract.—Admissibility.— In an assignee’s action on notes to foreclose a mortgage, corre spondence between the payee and a company to which he had agreed to sell certain sand on the mortgaged premises preliminary to a cancellation of the contract relating to the removal of the sand was admissible in evidence, where defendant makers had knowledge of the contract when they received a warranty deed from the payee, and joined with him in releasing such contract, p. 28.</p>

<p>From DeKalb Circuit Court; Dan M. Lmk, Judge.</p> <p>Action by Wendell E. Wells against Bessie B. Smith and others. From a judgment for plaintiff, the named defendant appeals. Reversed.</p>

<p>Prom Marion Superior Court (100,883); Theophilus J. Moll, Judge.</p> <p>Action by Adolph Mann* against the Union Traction Company of Indiana. Prom a judgment for plaintiff, the defendant appeals. Reversed.</p>

From Henry Circuit Court; Fred C. Gause, Judge. Action by Clarence Haskett against the Terre Haute, Indianapolis and Eastern Traction Company and Milton Miller, in which the last-named defendant filed a cross-complaint against his codefendant and plaintiff. From a judgment for the last-named defendant and plaintiff against the traction company, it appeals.

<p>1. Judgment.—Execution by Leave of Court.—Statute.—If no execution has been issued within ten years after rendition of judgment, the judgment creditor can obtain an execution only on leave of court in accordance with the provisions of §717 Burns 1914, §675 R. S. 1881. p. 72.</p> <p>2. Judgment.—Execution by Leave of Court.—Effect.—Statute.— A proceeding under §717 Burns 1914, §675 R. S. 1881, for leave to obtain the issuance of an execution after ten years from the entry of judgment, adds nothing to the longevity of the judgment; and if the judgment ever had been a lien on real estate and such lien has expired by lapse of time, no new lien is created by such proceeding, p. 73.</p> <p>3. Judgment.—Payment.—Presumption.—Lapse of Time.—Statute. —Section 307 Burns 1914, §305 R. S. 18S1, providing that every judgment or decree shall be deemed satisfied after the expiration of twenty years, is not in any sense a limitation on the life of a judgment, but is merely a legislative declaration of a rule of evidence by which a judgment more than twenty years old stands discredited under a rebuttable presumption of payment, p. 74.</p> <p>4. Limitation of Actions.—Necessity of Pleading.—Statute.—To avail himself of §295 Burns 1914, §293 R. S. 1881, providing that actions on judgments must be brought within twenty years, a litigant must plead the limitation herein described, p. 75.</p> <p>5. Judgment.—Payment.—Pleading.—Statute.—In order that a litigant may avail himself of the presumption of payment created by §307 Burns 1914, §305 R. S. 1881, payment must be pleaded, p. 75.</p> <p>6. Limitation of Actions.—Action on Judgment.—Computation of Time.—Nonresidence.—Statute.—Under §299 Burns 1914, §297 R. S. 1881, providing that the time during which a party is a nonresident of the state shall not be computed in any of the statutory periods of limitation, when a judgment debtor becomes a nonresident of the state, the time of his nonresidence must be excepted from the computation of limitations under statutes limiting the time for enforcement of judgments. ■ p. 75.</p> <p>7. Execution.—Issuamce.—Limitation as to Time.—Section 717 Burns 1914, §675 R. S. 1881, providing that after ten years from the entry of judgment execution can be issued only on leave of court, does not limit the time in which execution may be'issued, but authorizes the court to grant leave to take out execution after the lapse of ten years on proof that the judgment or any part thereof remains unpaid, p. 77.</p> <p>8. Judgment.—Extinguishment.—Lapse of Time.—Statute.—Section 307 Burns 1914, §305 R. S. 1881, providing that every judgment or decree shall be deemed satisfied after the expiration of twenty years, does not absolutely - extinguish a judgment after the lapse of such time, in view of other sections of the statutes recognizing the existence of a judgment for certain purposes after twenty years, p. 77, 78.</p> <p>• 9. Judgment.—Extinguishment.—Statute of Limitations.—In no event does a statute of limitations utterly destroy a judgment, for if the limitation be not pleaded it is waived, and the judgment, though more than twenty years old, will sustain a new judgment, or if in an action on a judgment the limitation be pleaded and the action thereby barred, the old judgment will be a sufficient consideration for a new promise, p. 78.</p> <p>10. Judgment.—Extinguishment.—Lapse of Time.—Statute.—Constitutionality—Section 307 Burns 1914, §305 R. S. 1881, providing that every judgment or decree shall be deemed satisfied after the expiration of twenty years, if construed as extinguishing a judgment after the lapse of that time, would be unconstitutional, since the legislature has no power to decide and declare arbitrarily that a judgment has been paid when in fact it has not. p. 79.</p>

<p>Appeal.—Review.—Evidence.—Sufficiency.—There being evidence to support the decision oí the trial court, it. will not be disturbed on appeal as not being sustained by sufficient evidence.</p>

<p>1. Highways.—Establishment.—Failure to Specify Width.—Valid-, ity of Order.—Statute.—An order establishing a highway which fails to specify the width of the proposed road, -as required by §7794 Burns 1914, §5028 B. S. 1881, relating to the width ol .county and township roads, except by reference to the viewer’s report,' which stipulated only an. indefinite width of not less than forty feet, was insufficient to comply with the statute, p. 83,</p> <p>2. Highways.—Establishment and Improvement.—Petition.—Ré• quisites.—Preliminary to the establishment and improvement of a new highway, and as necessary to the jurisdiction of the board oi. county commissioners to so act, there must be a petition, signed by fifty freeholders and voters of the township, asking for both establishment and improvement, p. 83.</p> <p>3. Highways.—Establishment and Improvement.—Void Order-Collateral Attack.—An order for the establishment and improve-, ment of a proposed highway, supported only by a petition asking for the establishment of the proposed road, is void, and subject to collateral attack, p. 84.</p>

<p>From Marion Superior Court (93,610); Linn D. Hay, Judge.</p> <p>Action by Ollie E'. Bailey against the London Guarantee and Accident Company. From a judgment for defendant, the plaintiff appeals. Reversed.</p>

From Tippecanoe Circuit Court; James L. Gold-well, Judge. Action by Earl R. Hunt against the Lafayette Gravel and Concrete Company, in which a receiver was appointed and defendant’s property sold, and . Charles F. Hunt, the First National Bank, Frank H. Longyear and others filed claims to the proceeds of the sale. From the judgment rendered, • Charles F. Hunt appeals.

From Tipton Circuit Court; James M. Purvis, Judge. Claim by Susan Lessig against the estate- of George Davis, deceased, Fred E. Davis, administrator. From a judgment in favor of the estate, the claimant appeals.

<p>From Hamilton Circuit Court; Ernest E. Cloe, Judge.</p> <p>Action by Wainwright Trust Company, administrator of the estate of Everett Lewis Bell, deceased, against Eva Lois Stern and others. From a judgment for appellee Bell, the plaintiff appeals.</p>

<p>From Marion Superior Court (97,777); Vincent G. Clifford, Judge.'</p> <p>Action by Tennyson Phillip, by next friend, against Horace J. Yount and others. From a judgment for defendants, the plaintiff appeals.</p>

From Howard Circuit Court; William C. Overton, Judge. Proceedings for the improvement, of certain highways in which claims were filed against the county of Howard by the Tipton Realty and Abstract Company, the Kokomó Stone Company, and others. From a judgment of the circuit court, dismissing appeals from the board of county commissioners, after reversal of judgment by the Appellate Court, the Tip-ton Realty and Abstract Company and others appeal.

From Monroe Circuit Court; S. B. Lowe, Special Judge. Action by Fred P. Hoover against Henry A. Lee, executor of the will of Eliza J. Alexander, deceased, and others. From a judgment for plaintiff, the named defendant appeals.

<p>1. Railroads.—Right of "Way.—Trespass.—Exemplary Damages.— Where, in defiance of a judgment obtained after the lease expired, quieting title in the landlord and enjoining the lessee railroad from further operating a switch ’over the land involved, a railroad continues to so operate, without appropriation proceedings,. it is a trespasser, and, in an action for damages for the rental value of the tract and for damages to the farm caused by such wrongful occupancy and use, cannot complain if the amount recovered should contain an element of exemplary damages. p. 134. '</p> <p>2. Eminent Domain.—Right of Trespasser to Appropriate.—Railroads.—A railroad cannot lawfully appropriate land for a switch while so occupying such land as a trespasser, p. 134.</p> <p>3. Eminent Domain.—Compensation.—Title.—Railroads.—Before title to land for a switch track condemned by a railroad can pass to it, the amount due the owner must be determined and paid, p. 134,</p> <p>4. Action.—Case.—Railroads.—Leased Right of Way.—Holding Over.—Damages.—Evidence.—Estoppel.—Where, at the expiration of a 25-years’ lease of land for a switch track, the railroad, without condemnation,'held over, and the owner secured a judgment quieting her title to the tract and enjoining further use thereof by the railroad and where such railroad continued to hold and use such tract for such switch, without taking any legal steps for the appropriation thereof, but wrongfully claiming title thereto, to the date of the trial, it is not in position to claim that the damages resulting to the owner should have been proved as of any date other than that of the trial, p. 136.</p> <p>5. Appeal.—Review.—Evidence.—Objections in Lower Court.— Briefs.—An appellant fails to present any question of the admissibility of evidence on appeal where his brief does not show, by the statement of the record required by Rule 22 of the Appellate Court to be contained in his brief, that an objection was made to thq reception of the evidence, and the reason therefor; and it is not sufficient to refer to such objection in the motion for new trial, or to state reasons therefor under the heading “Propositions Under Error Relied On.” p. 137.</p> <p>6. Appeal.—Record.—Instructions.—Briefs.—An appellant, to present any question upon the giving or refusal of instructions, must affirmatively show by his brief that the instructions are a part of the record, and must properly present the errors relied on, with his exceptions, p. 138.</p>

<p>Negligence.—Automobile Collision. — Action. — Complaint. — Averments.—Operation of Aiotomobile by Another.—In an action to recover for damage to plaintiff’s automobile, a complaint alleging that defendant permitted another to operate his automobile, and while such person was so driving it at a high and dangerous rate of speed, he brought it into collision with plaintiff’s car, is sufficient to. state a cause of action, in the absence of averments that the driver was a servant or agent, or that he was on any errand or business of defendant.</p>

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action "by Elmer Coddington against "William J. Nees and another. From a judgment for defendants, the plaintiff appeals. Reversed.</p>

<p>From Madison Circuit Court; Luther E. Pence, Judge.</p> <p>.Action by William E. Barnes against John H. Ryan. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>Waters , and Watercourses.—Flood Waters of Stream.—Obstruction.—Actions.—Complaint.—Sufficiency.—In a landowner’s action for damages and for an injunction against the diversion of overflow waters to plaintiff’s land, complaint held good as against demurrer.</p>

From Lake Circuit Court; Willis C. McMahan, Judge. Claims by Charles B. Shedd filed with and against the board of commissioners of Lake county, Indiana, for the refund of taxes. From a judgment for the claimant, the defendant appeals.

<p>1. Tenancy in Common.—Possession hy Cotenant.—The possession of land by one tenant in common is constructively the common possession of all, the possession of one being deemed to be for the benefit of himself and his cotenants in common, p. 169.</p> <p>2. Tenancy in Common.—Disseizin.—For one tenant in common to disseize his cotenants there must be an actual ouster or such acts as are equivalent to an ouster and from which an ouster may be presumed.. p. 169.</p> <p>3. Tenancy in Common.—Disseizin.-—-it is not necessary that an ouster by one tenant in common of his cotenants shall be forcible, but it is sufficient that there are such acts upon the part of the tenant in possession as to manifest an intention upon his part to claim the full title to the real estate involved, p. 170.</p> <p>4. Tenancy in Common .—Disseizin.—Conveyance of Whole Title hy Cotenant.—A deed of conveyance of the whole title to a tract of land by one cotenant thereof, followed by adverse possession, amounts to an ouster or disseizin of the other cotenants, p. 170.</p> <p>5. Tenancy in. Common.—Ouster With Notice of Adverse Claim.— Rtmning of Statute of Limitations.—When there is an ouster by</p> <p>. one claiming title to real estate of his cotenant, with knowledge of such fact brought home to such cotenant, the Statute of Limitations begins to run. p. 170.</p> <p>6. Tenancy in Common.—Adverse Possession hy Tenant in Common.—Right of Cotenants to Partition.—When a cotenant openly occupies real estate as his own to the exclusion of the others, taking and converting the rents to his own use, and ignoring and failing to. recognize the others as having any interest in the land or right to possession or use of the same, such occupancy, continued for a period of the statute of limitation, will confer absolute title in fee simple upon the one so occupying, and will bar an action by one out of possession for partition. p. 170.</p> <p>7. Tenancy in Common.—Disseizin.—Exchange of- Deeds.—Adverse Possession.—Where two cotenants claiming a tract of land exchanged by deed their undivided interest in the respective halves of such traet, and the deeds were duly entered of record and possession taken thereunder, the transaction was an ouster of a third cotenant, and, after adverse possession for twenty-six years, he could not assert any title or interest in the land involved, p. 171.</p>

<p>From Warrick Circuit Court; Ralph E. Roberts, Judge.</p> <p>Action by Frank Handley, by Ms next friend James Handley, against the Standard Oil Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Porter Circuit Court; Harry L. Grumpacher, Judge.</p> <p>Action by Charles E. Amen against the Standard Steel Car Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Marion Circuit Court (21977); Louis B. Ewbanh, Judge.</p> <p>Action by J. Edward Morris' against Richard R. Harter. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal.—Harmless Error.—Instructions.—Obvious Use or Omission of Words.'—Jury Not Misled.—Where a mistake in the use of words in an instruction, or the omission therefrom of one or more words, is so obvious that it is manifest that the jury could not have been misled thereby, the error will be deemed immaterial. p. 210.</p> <p>2. Trial.—Instructions.—Construing Together.—Assumption of Fact.—Personal Injury Actions.—An instruction, expressly conditioned on the jury finding for the plaintiff under the rules given, one of which was stated in another instruction, that, to enable plaintiff to recover, she must establish by a fair preponderance of the evidence that she received the injuries or some part thereof complained of, does not assume the fact of plaintiff’s injuries. p. 210.</p> <p>3. Negligence.—Instruction.—Proximate Cause.—An instruction by which the court informed the jury that if it found that dedendant was not guilty of the negligence charged in the complaint the verdict should be in his favor, was complete without any reference to the question of proximate cause, p. 211.</p> <p>. 4. Trial.—Instructions.—Omission Covered by Other Instruction. —Proximate Cause.—Defendant was not harmed by0the failure to instruct on proximate cause'by one instruction, where the subject was covered by another instruction given, p. 211.</p> <p>5. Municipal Corporations.—Streets.—Collisions.—Ordinances.— Signals.—Instructions.—Negligence.—In an action for personal injuries by collision between vehicles upon a street, an instruction that defendant had the right to assume that plaintiff would obey a city ordinance wbicb provided for and required signals before turning, and to operate his automobile in absolute reliance thereon under all circumstances, was properly denied, p. 211.</p> <p>6. Municipal Corporations.—Streets.—Collisions.—Contributory Negligence.—Signal Ordinances.—Instructions.—In an action for personal injuries by collision between vehicles upon a street, an instruction that was subject to the'misleading construction that if plaintiff failed to give the turning signal required by ordinance, the verdict should be for the defendant regardless of whether such failure contributed to the plaintiff’s injury, was properly denied, p. 211.</p> <p>7. Municipal Corporations.—.Streets.—Collisions.—Contributory Negligence.—Proximate Cause.—Instructions.—An instruction was properly refused in an action for personal injuries resulting from a collision of vehicles upon a street, which informed the jury in effect that plaintiff could not recover if her horse backed into defendant’s automobile, if that was the proximate cause of her injuries, although the defendant may have been guilty of the negligence charged in the complaint, and although such negligence was the proximate cause of the horse backing, p. 213.</p> <p>8. ' Evidence.—Impeachment of Witness.—Foundation.—Right to Whole Conversation.-—The rule that when a party introduces a part of a conversation, the opposite party has a right to all that was said therein, has no application where the opening party confines his examination to questions for the purpose of laying-the foundation for impeachment, p. 213.</p> <p>9. Trial.—Directing Verdict.—Contributory Negligence.—Municipal Corporations.—Streets.—Signals.—A requested instruction to return a verdict for defendant, based on claimed contributory negligence by violation of a city ordinance, is properly refused, where the evidence of the facts claimed to show contributory negligence is not uncontradicted, and is silent as to whether plaintiff gave the required signal that she was about to turn her vehicle in one of the two ways specified in the ordinance, p. 214.</p> <p>10. Trial.—Streets.—Collision.—Viewing Vehicle.—Discretion of Court.—Section 564 Burns 1914, §538 It. S. 1881, reposes discretionary power in the court to permit an inspection by the jury of defendant’s automobile in an action for a collision with another vehicle fin the street; and jvhere the facts could be accurately described by witnesses and it is questionable whether such an inspection would serve any useful purpose, it was not error to refuse defendant’s request therefor, p. 215.</p> <p>11. Appeal.—Verdict.—Supporting Bvidence.—Review.—Where there is some evidence tending to support each essential element necessary to a recovery, the verdict of the jury determined the weight and value thereof, and its decision thereon for the plaintiff is not subject to review on appeal, p. 215.</p> <p>12. Appeal.—Waiver of Questions Reserved.—Briefs.—Propositions and Points.—Appellant waives any reasons assigned as grounds for a new trial, not specifically referred to in the propositions or points made in his brief, p. 216.</p>

<p>1. Appeal.—Review.—Harmless Error.—Sustaining Demurrers to Answers.—Where defendant pleaded a general denial, no available error was committed by sustaining demurrers to special paragraphs of answer setting forth facts which were admissible in evidence under the general denial, p. 224.</p> <p>2. Appeal.—Review.—Harmless Error.—Sustaining Demurrers to Answers.—Where defendant’s counterclaims were fully as comprehensive as its special answers, and all the evidence properly admissible under such answers was admissible and actually received under the counterclaims, error, if any, in sustaining demurrers to the special answers was harmless, defendant’s rights being fully protected by its challenge of the sufficiency of the evidence to sustain the court’s finding, p. 224.</p> <p>3. Evidence.—Pleadings Containing Admissions.—Admissibility.— In an action by a sales company to recover commissions alleged to be due on sales of automobile bodies manufactured by defendant, a paragraph of defendant’s special answer to which a demurrer was sustained and which contained admissions tending to prove the execution and acceptance of the contract involved and the number of bodies delivered by defendant, was admissible, p. 225.</p> <p>4. Evidence.—Pleadings. — Consideration as a Whole.-—’When a party introduces his adversary’s pleading in evidence, all the statements therein are to be taken together, regardless of whether they make for or against the pleader, p. 226.</p> <p>5. ' Evidence..—-Pleadings. — Conclusiveness of Averments.-—Where plaintiff offers in evidence defendant’s answer to prove certain facts by admissions therein contained, such averments in the answer as are favorable to defendant are not conclusive as against plaintiff, and may be- disproved by him. p. 226.</p> <p>6. Evidence.—Parol Evidence.—Admissibility.—Construction of Contract.—In an action by a sales agent to recover commissions on sales of automobile bodies, where the contract of sale provided that defendant might enter order for purchaser’s requirements in bodies, etc., parol evidence of circumstances and negotiations preceding the execution of the contract was admissible to show that the price quoted was on a certain type of body, and that other models were not contemplated; the contract being uncertain. pp. 226, 228.</p> <p>7. Contracts. — Construction. — Ambiguity. — Parol Evidence. — While the language of a written contract is the sole guide by which to ascertain its meaning, yet where the language used is ambiguous, uncertain or susceptible of a double meaning, it is proper for the court to hear parol testimony respecting the subject-matter of the contract, the situation of the parties and the circumstances under which it was executed, and the language of the contract should be interpreted in the light of all proper facts disclosed by such testimony. p. 227.</p> <p>8. Contracts. —Ambiguous Contract.—Construction.—Subsequent Acts of Parties.—In .the interpretation of a written instrument whose language is ambiguous or equivocal, weight should be given to the subsequent acts of the parties as indicating what construction they placed upon it. p. 228.</p> <p>9. Evidencje.—Interpretation of Contract.—Opinion Evidence.—In an action by a sales agent to recover commissions alleged to be due on sales of automobile bodies manufactured by defendant, although the contract of sale procured by plaintiff was ambiguous arid uncertain, it was error to permit witnesses to interpret, it by testifying that they knew that the contract covered bodies of a certain type and model only. p. 228.</p> <p>10. Contracts.—Construction.—Province of Court.—The facts respecting the situation of the parties and the circumstances surrounding the execution of the ambiguous contract having been ascertained, the interpretation of the contract remains the exclusive province of the court, p. 229.</p> <p>11. Appeal.—Review.—Admitting Improper Testimony.—Reversal. —Where the trial court interpreted the contract on which the action was predicated in harmony with plaintiff’s theory, and the court on appeal is unable to determine that incompetent testimony of witnesses in effect interpreting the contract did not influence the court below, the admission of such testimony was reversible error, p. 229.</p>

From Marion Superior Court (93,977); Theophilus J. Moll, Judge. Action on official bond by the State of Indiana, on the relation of Maria Fenstermacher, against Patrick H. McNelis and another. From a judgment for defendants, the plaintiff appeals.

From Marion Superior Court (100,130); Linn D. Hay, Judge. Action by Martbena Harrison Williams against Russell B. Harrison, trustee.under tbe will of Benjamin Harrison, deceased, and others. From a judgment for defendant, tbe plaintiff appeals.

<p>From Marion Superior Court (99,721); John-J. Rochford, Judge.</p> <p>Action by Mary B. Fitzgerald against the Merchants National Bank and another. From'rulings adverse to plaintiff, she appeals.</p>

<p>From Clark Circuit Court; James W. Fortune, Judge.</p> <p>Action by tbe Second National Bank of New Albany against Lieu W. Sbireman. From a judgment for plaintiff, tbe defendant appeals.</p>

From the Industrial Board of Indiana. Proceedings under the Workmen’s Compensation Act for compensation by Margaret Miller against the Nissen Transfer and Storage Company. From an award for applicant, the defendant appeals.

From Delaware Circuit Court; William A. Thompson, Judge. Action by Lewis D. Griswold ag’ainst the Lake Erie and Western Railroad Company and Edward Kindlesparker. From a judgment for plaintiff against the railroad company, with no finding as to Kindlesparker, the defendant railroad appeals.

<p>1. Municipal Corporations.—Defective Sidewalks.—Injuries to Pedestrians.—Contributory Negligence.—Knowledge of Defect.— In an action by a. pedestrian for injuries sustained when she stepped into a-hole in a sidewalk at night, held that, even though plaintiff had knowledge of the defect in the walk, the court on appeal could not, in view of the facts shown by the evidence, say as a matter of law that plaintiff was guilty of contributory negligence, p. 280.</p> <p>2. New Trial.—Newly-Discovered. Evidence.—Affidavit of Physician Concerning Ailment Treated.—Competency.—Where plaintiff obtained a judgment for personal injuries, an affidavit of a physician, filed in support of a motion for new trial, stating that he had treated plaintiff professionally prior to her injury, and that she was at that time afflicted with a certain ailment, shows that he was an incompetent witness, and, plaintiff not having consented to his testifying, such affidavit must be disregarded. p. 282.</p> <p>3. New Trial.—Newly-Discovered Evidence.—Diligence.—A party seeking a new trial on account of newly-discovered evidence must show diligence in discovering all legitimate evidence before the trial closed and in the preparation of his ease for trial, p. 282.</p> <p>4. • New Trial.—Newly-Discovered Evidence.•—Affidavit as to Diligence in Discovering.—Sufficiency.—Where a pedestrian obtained judgment against a municipal corporation for injuries due to a defective sidewalk, and defendant sought a new trial on the ground of newly-discovered evidence showing that prior to plaintiff’s injury she had been afflicted with rheumatism, and that she knew of the defective condition of the sidewalk, an affidavit in support of the motion for new trial which stated that affiant, the mayor of the city, prior to trial had made an investigation of all matters relating to the action which came to his knowledge, and that he interviewed many persons in regard to the suit, but that at no time before the verdict was returned did he or .defendant know that plaintiff was afflicted with rheumatism or that she was acquainted with the defect in the walk, failed to show diligence, where it did not state that inquiry was .made of any person in the neighborhood where plaintiff resided or of any person who knew her or who was likely to know the facts concerning the accident or the previous condition of plaintiff’s health. p. 282.</p>

<p>1. Railroads.—Crossing Accident.—Complaint.—Contributory Negligence.—A complaint alleging that, within sixty or seventy feet of a crossing, plaintiff brought his automobile to a slow rate of speed, looked and listened, and waited for a signal to cross from the flagman regularly stationed at that point, and, after receiving such a signal, without fault or negligence and with due care and caution, increased his speed and proceeded to cross the tracks, did not show, as matter of law, a failure by plaintiff to look or listen while approaching the track over such distance, p. 287.</p> <p>2. Railroads.—Crossings.—Signals.—Duty of Traveler on Highway.—It cannot be said as matter of law that one signaled by a crossing flagman to cross the track is thereafter required to stop, look or listen for trains, p. 287.</p> <p>3. Railroads.—Crossings.—Flagmen.—Duty to Warn.—Negligence. —Where a railroad company employs a crossing flagman pursuant to an ordinance, and he negligently signals a traveler to proceed when an approaching train is so near that the traveler could not by exercising ordinary care avoid a collision, such negligence is chargeable to the railroad company, p. 287.</p> <p>4. Damages.—Amount.—Evidence.—Where witnesses fixed the value of an automobile damaged in a collision at from $500 to $600 before, and from $25 to $50 after, the accident, a verdict of $550 was not excessive, p. 288.</p> <p>5. Railroads.— Grossing Accident.— Negligence.— Automobiles.— Jury Question.—In an action for damages to an automobile struck by a backing train, evidence examined and held to make questions for the jury as to negligence and contributory negligence. p. 289.</p> <p>6. Trial.—Instructions.—Applicability.—The refusal of an instruction, drawn upon a theory of law not involved in the case, was not error, p. 291.</p> <p>7. Trial.—Instructions.—Last Olear Chance.—Assumption of Contributory Negligence.—Negligence.—An instruction tendered by defendant on the theory of last clear • chance, which implies that the plaintiff negligently went into a situation of peril, is properly refused, p. 291.</p> <p>8. Trial.—Instructions.—Use of Senses.—Reasonable Care.—Railroads.—Crossing Accidents.—An instruction that told the jury that plaintiff could not recover if he saw or heard the approach of the train, or by exercising his sense of sight or hearing could have seen or heard the train, in time to have avoided the injury, and attempted to cross ahead of the moving cars, was properly refused because it omitted the element of reasonable care on the part of plaintiff to avoid the Injury, p. 291:</p> <p>9. Trial.— Instructions.— Railroads.— Crossing Accidents.— Assumption of Knoioledge of Approach of Train.—An instruction that, if plaintiff approached a railroad crossing, in an automobile with side curtains up, at a rate of speed which he supposed would carry him across before the train could reach him, and in taking such chance, suffered the injury complained of, he could not recover, was properly refused, since it implied that the plaintiff had knowledge of the approach of the train, p. 291.</p> <p>10. Trial.—Instructions.—Railroads.—Crossing Accidents.—Reasonable Care.—An instruction that, if plaintiff saw the train in time to stop his automobile and avoid the injury, but misjudged the distance and speed of the train and speeded up and tried to cross ahead of the train and was injured, he cannot recover, was properly refused, since it omitted the question of the exercise of reasonable care by plaintiff in attempting to stop his automobile and in avoiding injury, p. 292.</p> <p>11. Railroads.—Crossing Accidents.—Duty of Traveler to Look and Listen.—Áñ instruction that plaintiff, approaching a railroad crossing in an automobile, was not as a matter of law, required to look and listen at any particular time, nor in one direction at a particular tiine and in 'another direction at a particular time, hut was required to look and listen at such times and places and in such directions as a person exercising ordinary prudence would have done under similar circumstances, is correct, p. —</p>

<p>1. Pleading.—Clause Begun Before Justice of the Peace.—Money Loaned.—Answer Not Required.—Under §1749 Burns 1914, §1460 R. S. 1881, no answer is required in the superior court to a complaint in a case originating before a justice of the peace to recover money loaned, p. 294.</p> <p>2. Evidence.—Burden of Proof.—Affirmative Defense.—Prima Facie Case.—While the burden was on plaintiff to prove the material allegations of his complaint, and such burden did not shift, yet, when he had made a prima facie case, the burden was upon defendant to establish any affirmative defense by which he sought to avoid the case made by the plaintiff, p. 295.</p> <p>3. Trial.—Instructions.—Additional Instructions.—Burden.—When defendant wishes an additional instruction as to the burden of the issues, he should tender it to the court, p. 295.</p>

<p>From Delaware Circuit Court; Luther F. Pence, Special Judge.</p> <p>Action by Bertha M. Smalley against the Central Trust and Savings Company, Newcastle, Indiana. From a judgment for defendant, the plaintiff appeals.</p>

From Tipton Circuit Court; James M. Purvis, Judge. Proceeding to determine and assess inheritance tax in the estate of Benjamin F. Conway, deceased. From the judgment rendered, Wilbur Armstrong, ad- • ministrator of said estate, and others, appeal.

<p>1. Insurance.—Automobile Fire Insurance.—Proofs of Loss.—Settlement with Mortgagee.—Settlement by an insurer of an automobile against fire with tbe mortgagee, a garage, about eight months after loss, was not a waiver of proofs of loss on the part of insured, the owner and mortgagor, p. 321.</p> <p>2. Insurance.—Automobile Fire Insurance.—Action on Policy.— Evidence.—Admissibility.—Disposition of Insured Automobile after Loss.—In an action by insured on a fire policy on an automobile, evidence that the automobile was taken from the place where it was burned to mortgagee’s garage by defendant insurer’s local agent, and that it was afterward disposed of, but not showing by whom it was disposed of, nor that such local agent had any authority in the matter, was properly excluded, p. 322.</p> <p>3. Appeai.—Questions Presented.—Admissibility of Evidence.— Withdrawal of Question.—Where a question propounded by plaintiff to her witness was withdrawn when objected to, and an objection was then sustained to a following offer to prove, there is no question presented on appeal as to the correctness of the trial court’s action in excluding the evidence, since to save such question for review on appeal there must be a pertinent question in the record, p. 322.</p> <p>4. Evidence.—Presumptions.—Deposit of Letter in Mails.—No presumption of the receipt of mail matter can arise unless it affirmatively appears that the letter was duly stamped when it was deposited in the mail. p. 323.</p> <p>5. Evidence.—Admissibility.—Contents of Writing.—In an action on a fire policy on an automobile, evidence, of the contents of the proof of loss claimed to have been mailed to defendant insurer was not admissible, in the absence of the usual steps preliminary to the introduction of such evidence, p. 323.</p>

<p>From Marion Superior Court (100,028); Theophilus J. Moll, Judge.</p> <p>Action by Richard Baker, by next friend, against the City of Indianapolis. From a judgment for plaintiff, the defendant appeals.</p>

From Adams Circuit Court; David E. Smith, Judge. Action by Mary Engel Gerke, by Theodore Gerke, her guardian, against the Citizens Bank of Spencer-ville, Ohio, and others. From a judgment for defendants, the plaintiff appeals.

<p>From Warrick Circuit Court; Herdis F. Clements, Special Judge.</p> <p>Action by the Farm Land Investment Company against Mary Howrey and another. From a judgment for plaintiff, the named defendant appeals.</p>

<p>Waters and Watercourses. — Railroads. — Obstructing Flow by Bridge.—Liability.•—A railroad which, by partially filling open trestle approaches to its bridge over a natural watercourse, and raising its embankments, obstructs the natural flow of the waters, is liable to an adjoining landowner for damage to his land caused by flood water thereby east thereon.</p>

From Lake Superior Court; Virgil 8. Reiter, Judge. Action by tbe State of Indiana on tbe relation of tbe Beckman Supply Company, against Edward Aubry as city controller of tbe city of Hammond, and another. From tbe judgment rendered, tbe relator appeals.

<p>From. Shelby Circuit Court; Alonzo Blair, Judge.</p> <p>Action by William F. Hatton against the Hodell Furniture Company. From a judgment for defendant, the plaintiff appeals.0</p>

<p>From Henry Circuit Court; Luther E. Pence, Special Judge.</p> <p>Proceeding for change of public highway petitioned for by Orpha Current and others. From a judgment dismissing an appeal from an order of the board of commissioners, Henry L. Current and others appeal,</p>

From Wabash Circuit Court; Nelson G. Hunter, Judge. Action by John Bundy and others against Walter Bowman and others, in which certain defendants filed cross-complaints. From the judgment rendered, the plaintffs appeal.’

<p>From Clark Circuit Court; James W. Fortune, Judge.</p> <p>Action by Leonard L. Ferris against' tbe Laub-</p> <p>Zink Furniture Company. From a judgment for. plaintiff, the defendant appeals.</p>

<p>Vendor and Purchaser.—Action for Breach of Contract.—Incumbrance in Excess of Amount Stipulated.—Exchange of Property. —In an action for alleged breach of a contract for the sale and exchange of real estate, where the contract provided that plaintiff was to convey certain land for a stated consideration, and subject to an encumbrance of $4,000 and to a certain lease, and that if there should be any defect in the title a reasonable time should be given to cure it, evidence of a tender of deed for said lands with an encumbrance thereon of $8,000, and of the existence of drainage liens upon said land, did not constitute a defect in title, but of the offer of a thing not bargained for by the defendant, and not only does not sustain the allegations of the complaint, but establishes the facts to the contrary.</p>

<p>1. Judgment.—Default.—Setting Aside.—Meritorious Defense.— Evidence.—Adunissibility.—In a proceeding upon an application under §405 Burns 1914, §396 R. S. 1881, for relief from a judgment, where the application shows that the petitioner has a meritorious defense, evidence tending to refute such defense is inadmissible, and if admitted cannot be considered for any purpose. p. 384.</p> <p>2. Judgment.—Default.—Setting Aside.—When Not Discretionary. —When the facts stated in an application for relief from a judgment under §405 Burns 1914, §396 -B. S. 1881, show that the defaulted party has a meritorious defense, and it appears that the default was taken through the mistake, inadvertence, surprise, or excusable neglect of such party, the trial court has no discretion, but must grant the relief, p. 384.</p> <p>3. Judgment.—Default.—Setting Aside.—Service by Copy at Hotel. —No Knowledge of Action.—One who was served only by copy of summons left at his hotel, but not received by him, and who had no knowledge whatever of the action filed against him until after the default had been taken, was entitled to relief from the judgment under §405 Burns 1914, §396 B. S. 1881. p. 384.</p> <p>4. Attorney and Client.—Knowledge by Attorney.—Client When Not Chargeable.—Where one had consulted an attorney as to a claim by another against him, for which claim an action was later begun and a judgment taken by default, the fact that such attorney, before the default was taken, had knowledge of the pendency of the action and had asked his client whether he had been sued, but without mentioning the specific case, are insufficient to charge the client with knowledge that the action had been filed against him. p. 384.</p>

From St. Joseph Circuit Court; Walter A. Funk, Judge. Action by William F. Whiteman, administrator of the estate of Sherman Lamadee, deceased, against the Supreme Tribe of Ben Hur, in which defendant inter-pleaded admitting liability and asking'that Charles F. Heinzman, guardian, be substituted as a party defendant. From a judgment for the substituted defendant, the plaintiff appeals.

<p>Appeal.—Briefs.—Appellee’s Failure to File.—Reversal.—Where appellee neglects to file a brief controverting the errors complained of by appellant, such omission may be deemed to be a confession of such errors, for which the court may reverse the judgment and remand the cause without prejudice to either party.</p>

<p>1. Raileoads.-—Crossing Accidents.—Notice of Danger.—Contributory Negligence.—Railroad crossings are, in themselves, a warning of danger, and a traveler approaching such a crossing, who fails to exercise reasonable care for his own protection and is injured, is guilty of contributory negligence, p. 406.</p> <p>2. Raileoads.—Crossing Accidents.—Care Required on Approaching Crossing.—Contributory Negligence.—Presumption.—A traveler upon a public highway, in attempting to pass over a railroad crossing, must look and listen attentively for the approach of trains, and, if-by the exercise of reasonable care, he could have seen the approach of a train by looking in time to have avoided injury by reasonable effort, it will be presumed, if he is injured, that he either did not look, or, if he did look, that' he did not heed what he saw. p. 407.</p> <p>3. Railroads.—Crossing Accidents.—Duty to Look and Listen on Approaching a Crossing.—Mental absorption or reverie induced by business, grief, or other causes, will not excuse a traveler on a public highway from his duty to look and listen when approaching a railroad crossing, p. 408.</p> <p>4. Railroads.—Crossing Accidents.—Duty to Look and Listen on Approaching a Crossing.—Although the exercise of reasonable care by a traveler on a public highway about to enter upon a railroad crossing does not require him to look and listen at any precise distance from the crossing, it does require him to exercise reasonable care to select a place where such acts will be reasonably effective, p. 408.</p> <p>5. Railroads.—Crossing Accidents.—Negligence.—Violation of Statute.-—Right to Assume Obedience to Law.—Contributory NeggUgence.—Although the failure of a railroad company to perform a statutory duty in the operation of a train as it approaches a public highway crossing is negligence per se, such negligence will not relieve a traveler on the highway about to enter on the crossing from- the duty of looking and listening, and this rule prevails, though the traveler has a right, within reasonable limits, to assume that the railroad company will obey the law in operating its train, p. 408. ■</p> <p>6. Trial.—General Verdict for Plaintiff.—Scope and Effect.—A general verdict for the plaintiff is a finding that all the material allegations of the complaint are true. p. 408.</p> <p>7. Railroads.'—Crossing Accidents.—Collision with Automobile-Contributory Negligence.—Failure to Look for Trains.—In an action for the death of an automobile driver in a crossing accident, decedent held guilty of negligence contributing proximately to his injury in that he failed to look for approaching trains, p. 409.</p> <p>8. Trial.—Verdict.—Answers to Interrogatories.—Construction.— An unreasonable construction cannot be placed on an interrogatory in determining whether the answers to interrogatories are in irreconcilable conflict with the general verdict, p. 410.</p> <p>9. Evidence.—Judicial Notice.—Means Employed to Stop an Automobile.—The court knows, as a matter of common knowledge, that the application of the brakes or shutting off the power are the usual means employed to stop an automobile, p. 410.</p> <p>10. Railroads.—Crossing Accidents.—Collision with Automobile.— Duty of Driver.—If the application of the brakes or the shutting off of the power from the automobile in which decedent attempted to cross over a railroad crossing would have been effective to avoid injury from an approaching train, and only reasonable promptness on the part of decedent was required to make such acts available for such purpose, it was his duty under the law to make use of them. p. 410.</p> <p>11. Trial.—Verdict.—Interrogatories.—Construction as a Whole.— It is not necessary, in order that the interrogatories may overturn a general verdict, that all facts with reference to a particular subject should be disclosed by a single interrogatory, but ■the several interrogatories and answers thereto may supplement each .other, and must be construed as a whole, p. 411.</p> <p>12. Trial.—Verdict.—Interrogatories.—Irreconcilable Conflict.-—• Answers to interrogatories will control the general verdict only when the conflict on the face of the record is such as to be beyond the possibility of,being removed by any evidence admissible under the issues, p. 411.</p>

<p>From Hendricks Circuit Court; George W. Brill, Judge.</p> <p>Action by John Rauch against the board of commissioners of the county of Marion. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Yermillion Circuit Court; Barton 8. Aihman, Judge.</p> <p>Action by Nicholas Hickey, administrator of the estate of William P. Smith, deceased, against the Terre Haute, Indianapolis and Eastern Traction Company and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>Damages.—Excessive Damages.—Assault ancl Battery.—Where plaintiff was shot in the arm with a 22-calibre revolver in the commission of an assault by defendant, and the evidence showed that he had sustained an actual financial loss of $150- and had suffered much physical pain and anguish of mind, together with a sense of shame and humiliation, a verdict of $500 is not excessive and cannot be said to contain any element of punitive damages.</p>

From Morgan Circuit Court; Linn D. Hay, Special Judge. Action by the Ward Cowen Construction Company and others against the Wayne Sewer and Drain Company and others. From the judgment rendered, the defendants appeal.

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by Anna Hobbs and others against James M. Gwinn and others. From a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Master and Servant.—Workmen’s Compensation.—Dependency. —Standard.—Construction.—-The Worlunen’s Compensation Act gives no definite standard of dependency, but the act being grounded in justice and economically sound, is construed liberally to accomplish the ends for which it was enacted, p. 467.</p> <p>2. Master and Servant.—Workmen’s Compensation.—Death of Minor.—Dependency of Parents.—If the earnings and income of the father were sufficient to support the family in a manner suitable to their condition and station in life, there could be no legal dependence under the Workmen’s Compensation Act upon the minor son who lost his life, although there may have been an actual dependence upon contributions from his wages, and an actual reliance thereupon by his parents to help support the family, p. 469.</p> <p>3. Master and Servant.—Workmen’s Compensation.—Death of Minor Child.—Dependency.—Burden of Proof.—In a proceeding under the Workmen’s Compensation Act for the death of a minor child, the burden of' proof of legal dependency is upon the parent, p. 469.</p> <p>4. Master and Servant.—Workmen’s Compensation.—Certified Questions.—Statement of Facts.—Silence as to Material Fact Concerning Dependency.—Effect.—When the statement of facts accompanying questions of law relative to dependency, certified by ■ the Industrial Board to the Appellate Court for answer, is silent as to the amount of money reasonably necessary to support and maintain in a condition and manner suitable to their condition and station in life, the family, consisting of father, mother, brother and sisters, of a minor, killed in the course of employment, such questions must be answered in. the negative, p. 469.</p>

<p>1. Interest.—Debt Payable by Installments.—Time to Pay Interest Hot Fixed.—When a debt with interest is to be paid by install- . ments, with no definite time fixed for the payment of the interest, the interest is due upon each installment at the time that such installment is due. p. 471.</p> <p>2. Divorce.-—Alimony. — Payment lyy Installments.—Interest.>— Under a decree for alimony in a gross sum with interest, directing the payment of the alimony in fixed monthly installments, the wife was entitled to each fixed monthly installment as they matured, with interest thereon from the date of the judgment, in • view of §1088 Burns 1914, §1047 R. S. 1881. p. 471.</p>

<p>1. Appeal.—Instructions.-—Refusals Covered by Instructions Owen. —Trial.—No complaint as to the refusal of an instruction can be made where its various points are fully covered by other instructions given. p. 474.</p> <p>2. Appeal.—Instructions.—Inapplicable to Evidence.—Trial.—It was not error to refuse an instruction as to the presumption raised by a settlement of a certain nature where there was no evidence of such a settlement, p. 474.</p> <p>3. Appeal.— Instructions.— Modification.—-Trial.— There is no cause for complaint because of the modification by the court of a requested instruction by striking out a portion thereof where the instruction as given was sufficient, under the evidence, as to the subject covered by the request, p. 475.</p> <p>4. Executors and Administrators.—Suit for -Services Rendered Decedent.—Measure of Damages.—Evidence of Value of Property Promised.—Admissibility.—While in a suit for services rendered a decedent, recovery can only be had upon the quantum meruit, evidence of the value of property which the plaintiff claimed decedent had promised to devise to her is admissible when limited by the court to the question of whether or not there was a promise to pay plaintiff any amount above what the evidence showed had been paid her, and not for the purpose of determining such amount. ■ p. 475.</p>

<p>From Marion Superior Court (105,000); W. W. Thornton, Judge.</p> <p>Action by Annie Goldberg against Louis Goldberg. From a judgment for plaintiff, defendant appeals.</p>

From Marion Superior Court (102,007); V. O. Clifford, Judge. Action by Isadore Salinger against the American Sardine Company and another, in which the Frontier National Bank of Eastport, Maine, intervened. From a judgment for the plaintiff, intervenor appeals.

<p>1. Pleading.—Complaint.—Construction.—Inferences.—In construing a complaint, where a demurrer is interposed, all facts will be deemed stated that can be implied from the allegations made by fair and reasonable intendment, and facts so impliedly averred ' will be given the same force as if directly stated, p. 489.</p> <p>2. Municipal Corporations.—Streets and Sidewalles.—Duty of City.—Personal Injuries.—Liability.—The law imposes on cities a duty to use reasonable care to keep their streets, including the sidewalks, in a reasonably safe condition for travel, and a failure to discharge such duty renders them liable for damages to a traveler injured thereby while exercising due care for his own safety, p. 489.</p> <p>3. Municipal Corporations.—Personal Injuries.—Action.—Complaint.—Sufficiency.—In an action against a municipal corporation for personal injuries, a complaint alleging that plaintiff was injured by falling through an unguarded coalhole in a sidewalk, which was covered only by loose boards; that the city had knowledge of the danger to pedestrians, etc., held to state a cause of action in its averments of defendant’s negligence and the injury proximately resulting therefrom, p. 489.</p> <p>4. Municipal Corporations.—Personal Injuries.—Notice to City. —Variance.—In determining whether there was a variance between the location of the place where plaintiff was injured and its'location as designated in the notice of injury served by plaintiff on defendant city pursuant to §8962 Burns 1914, Acts 1907 p. 249, it is proper to resort to the evidence, not to supplement the notice or to supply deficiencies therein, but to apply the notice to the situation as it appears on the ground, p. 490.</p> <p>5. Municipal Corporations.—Personal Injuries.—Action.—Notice of Injury.—Evidence.-—-Variance.—In an action against a municipal corporation for personal injuries, notice served on defendant pursuant to §8962 Burns 1914, Acts 1907 p. 249, by plaintiff, who was injured by falling through a coal chute in a sidewalk, held not to vary materially from the proof of the place where the accident happened, which was No. 913 Wabash avenue, though notice stated that the number was 813. p. 493.</p> <p>6. Appeal.—Review.—Harmless Error.—Exclusion of Evidence.— Error, if any, in refusing to permit a witness to answer a certain question on cross-examination asked by defendant was harmless, where the same matter was covered in subsequent questions propounded by defendant to the witness and such questions were answered without objection, p. 495.</p> <p>7. Appeal.-—Review.—Harmless Error.—Admission of Evidence.— In an action against a city for personal injuries, error, if any, in permitting a medical witness to testify as to what abnormal or unhealthy conditions were shown by X-ray plates of plaintiff’s knee, was harmless, where the witness, in response to the questions asked in that regard, testified that no unhealthy conditions were found, p. 495.</p> <p>8. Evidence.—Opinion Evidence.—Admissibility.—In an action against a city for personal injuries, evidence of a medical witness as to what, in his opinion, based on his examination of</p> <p>■ plaintiff, produced the abnormal condition which he had testified existed in her left knee, which evidence on its face was competent, was not rendered inadmissible because the witness had taken X-ray pictures of both knees of plaintiff, and had examined and considered both pictures in forming his opinion, p. 496.</p> <p>9. Appeal.—Briefs.—Waiver of Error.—Where appellant fails to state in its brief any proposition or point with reference to the damages being excessive, it waives any error in respect 'to the amount of the recovery, and cannot, therefore, predicate any error on the giving of instructions relating to the assessment of damages, p. 496.</p>

<p>From Lake Circuit Court; J ohm B. Peterson, Special Judge.</p> <p>Action by William Sehwiening against Henry Rust. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. ■ Municipal Cobpobattons.—Sidewalk Accident.—Knowledge of Defects.—Mixed Question of Law and Fact.—Notice Not Proper Subject of Interrogatory .—In an action to recover for' injuries sustained' by stumbling over loose bricks and a hole in the sidewalk, alleged to have been in such condition for six months, and of which it was averred the city had had both actual and constructive knowledge, the question of notice is a mixed question of law and fact'concerning which it is not proper directly to ask the jury. p. 508.</p> <p>2. Municipal Cobpobations.—Sidewalk Accident.—Notice of Defects.—Answers to Interrogatory.—Constmction With Complaint. —Where a complaint for damages by reason of dangerous condition of a sidewalk made specific allegations of the precise nature of the defects and of their continuance for a long time prior to the accident and averred both actual and constructive knowledge thereof on the part of the city, answers of “no evidence” to a line of interrogatories relating to notice or knowledge of such defects will be construed in connection with such allegations and held to mean that the city had no actual notice or knowledge of the described dangerous conditions. p. 508.</p> <p>3. Municipal Cobpobations.—Sidewalk Accident.—Notice of Defect—Interrogatories to Jury.—Answer of No Evidence■ of Actual Notice Not Irreconcilable With Verdict.—In an action for damages by reason of defects in a sidewalk alleged to have been in the same condition six months prior to the accident, answers to interrogatories that exclude actual notice or knowledge of such condition on the part of the city or its officers but that fail to contradict the averments of the complaint as to the length of time such condition had existed, are not in irreconcilable conflict with the general verdict, p. 508.</p>

<p>1. Appeal.—Review.—Ruling on Motion for Judgment on Interrogatories.—Scope of Review.—In determining whether the trial court erred in overruling defendant’s motion for judgment on the jury’s answers to interrogatories, the general verdict for plaintiff must be viewed as a finding of every issuable fact in plaintiff’s favor, and only the issues formed by the pleadings, the answers to interrogatories, and the general verdict may be considered; and the general verdict must prevail unless the answers to the interrogatories are in irreconcilable conflict therewith, p. 513.</p> <p>2. Appeal.—Review.—Ruling on Motion for Judgment on Inter- ' rogatories.—Presumptions.—In determining whether the trial court erred in overruling defendant’s motion for judgment on the jury’s answers to interrogatories, it is the duty of the court on appeal to search the pleadings to ascertain if, from any evidence possible under the issues, the answers to the interrogatories can be reconciled with the general verdict, and every reasonable presumption and inference deducible from the evidence which might have been admitted ■ in support of the general verdict will be indulged in its favor, p. 514. ■</p> <p>3. Negligence.—Proximate Cause.—Intervening Agency.—The intervention of an independent agency does not break the line of causation so as to relieve the original wrongdoer where, by the exercise of ordinary care, he should have foreseen such intervening cause and guarded against the dangers likely to result therefrom, p. 515.</p> <p>4. Appeal.—Waiver of Errof.—Briefs.—An assignment of error is waived by appellant’s failure to mention it in the propositions or points in its brief, p. 516.</p> <p>5. Appeal.—Record.—Bill of Exceptions.—Time for Filing.—Under §661 Burns 1914, Acts 1911 p. 193, providing that a party desiring a rq-extension of time in which to file a bill of exceptions containing the evidence shall make an application therefor under oath showing that the statutory cause for such an extension exists, and shall give the opposite party, or his attorney of record, at least three days’ notice of the time when, and place where, the application will be heard, where the record fails to show a compliance with such statutory requirements, an order purporting to grant a re-extension of time for filing a bill of exceptions containing the evidence is ineffective for that purpose, such order merely reciting that the time for filing had been extended to a certain date. p. 516.</p> <p>6. Appeal.—Review.—Instructions.—Absence of Evidence from Record.—Where the evidence is not in the record, instructions given cannot be regarded as erroneous unless they would be improper under any state of facts admissible under the issues, p. 517.</p> <p>7. Appeal.—Review.-1—Refusal of Instructions.—Absence of Evidence from Record.—Presumptions.—Where the evidence is not in the record, the court on appeal will presume that all instructions, properly tendered and not .given, were correctly refused because inapplicable to the case made by the evidence, p. 518.</p> <p>8. Appeal.—Review.—Denial of Motion in Arrest of Judgment.— The court did not err in overruling appellant’s motion in arrest of judgment, where the reasons assigned in support of the motion related to the sufficiency of the complaint, and appellant,” by failure to demur, had waived all objections to the complaint, p. 518. .</p>

<p>From Blackford Circuit Court; William E. Eichhorn, Judge.</p> <p>Action by George Tatman against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Sales.—Contracts.-—Order and Confirmation.—Duty of Trial Court.-—When tbe clear and unambiguous meaning of a confirmation shows that it was the seller’s intention to accept the order according to its terms, it is the duty of the trial court to so declare and give it that effect, p. 541.</p> <p>2. Sales.—Contracts.—Stipulation on Face of Order as to Provisions Printed on Bade.—Confirmation “We Save This Day Entered Sale to You."—Effect.—Where the order for flour contained a provision on its face concerning carrying charges, which did not appear on the face of the confirmation, and when both order and confirmation were made subject to identical terms and conditions printed on their backs, among which was a provision in effect the same, the appearance thereof on the face of the order was not at variance with the confirmation but called the seller’s attention to the buyer’s interpretation of the terms printed on the back; and from the use of the words “we have this day entered sale to you” in the confirmation it may be reasonably inferred that the seller accepted such interpretation, p. 541.</p> <p>3. Sales.—Contracts.—Printed Phrases in Confirmation Bionics Inapplicable to Subject-matter.—Meeting of Minds.—It does not show that there was no meeting of minds, where the confirmation contained printed phrases designating kinds or grades of flour, opposite which no amounts were set to indicate that any flour of the brands thus designated entered into the confirmation, it being at the same time clear upon other brands to the amount shown by the order, p. 541.</p> <p>4. Sales.—Contract.—Stipulation of Shipment Period.—Carrying Charge Thereafter.—Bffect on Life of Contract.—Where an order for flour and its confirmation alike specified the shipping period, and subsequent portions of each identically provided that if the flour sold be not ordered out within the contract shipping period, it was to be subject to a stipulated carrying charge, the contract did not terminate by the mere expiration of the named shipping period, p. 543.</p> <p>5. Sales.—Contracts.—Printed Clauses.—Disregarded When Inapplicable.—A clause in printed forms for order and confirmation of sales, providing a rule for determining the period' within which 'the goods must be ordered out “unless otherwise specified,” must be disregarded when the order and confirmation in question affirmatively fix the shipping period, p. 543.</p> <p>6. Customs and Usages.—Not Controlling Against Contract Provisions.—Sales.—Where by a fair implication arising from the provisions of the contract the requirement incumbent on the buyer as to the time of ordering out the goods sold was fixed by the contract, a general custom making a different requirement cannot be accepted as, controlling in' that regard, p. 546.</p> <p>7. Sales.—Failure to Deliver.—Actions for Breach.—Shipping Instructions.—Evidence.—The seller is not in position to insist that it failed to make shipments because no shipping instructions- were given, where the evidence contains a letter from the seller to its agent in the sale, admitting the receipt from the buyer of shipping instructions for future shipments to be made under the contract, p. 456.</p> <p>8. Sales.—Contracts.—Repudiation by Seller.—Action for Breach. —Seller Cannot Change Crounds of Refusal to Deliver.—After suit brought by the buyer for breach of sale contract, the seller, who has based his refusal to make shipments solely on the ground that the contract had expired by limitation, cannot change its position and base its refusal on another and different ground, p. 546.</p> <p>9. Sales.—Contracts.—Repudiation by Seller.—Shipping Instructions Thereafter.—Where the seller repudiates the contract of sale by declaring that it had expired by limitation, it is not incumbent upon the buyer thereafter to furnish shipping instructions and specifications as provided by the contract, p. 546.</p> <p>10. Depositions.—Return by Officer Talcing.—Statutory Requirements—Construction.—Statutes relating to the return of depositions by fhe officer taking the same to the clerk of the court in which the action is-pending, are, as a rule, liberally construed, the prevailing object being only to preserve the purity of the deposition, p. 547.</p> <p>11. Depositions.—Return.—Unimportant Deviations m Indorsement of Names on Eiwelope.—No Prejudice to Objecting Party.-—■ Publication.—The use of the abbreviation “Co.” for “Company,” “Cadwick” for “Cadiek,” and initials only for the Christian name of a witness, by the officer taking depositions, in his indorsement upon the envelope of transmission, not shown nor appearing to have in any way prejudiced the objecting party in the trial of the cause, held not to render the depositions subject to an objection to their publication, in the light of the general rule of construction of statutes governing such matters' and of the express provisions of §463 Burns 1914, §447 K. S. 1381, concerning unimportant deviations from any direction relative to taking depositions, p. 547.</p> <p>12. Appeal.—Briefs.—Excessive Damages.—Points and Authorities. —No Question Presented.—A reference' to the amount of recovery in appellant’s brief in its propositions and points by the mere statement that “the assessment of recovery is too large,” presents no question for consideration, p. 548.</p> <p>13. Appeal.—Evidence.—Harmless Error.—Damages.—Error, if ar.y, in admitting evidence that could only bear on the question of the amount of damages, must be regarded as harmless when no question is presented for consideration as to the amount of recovery by appellant’s brief, p. 548.</p> <p>14. Appeal.— Review.— Damages.— Remittitur.— Evidence.—-Appellant cannot complain of the amount of recovery, where, following a remittitur, judgment was rendered within the amount shown to be due by evidence introduced by appellant, p. 548.</p> <p>15. Tkial.—Reception of Evidence.—Cross-Examination.—Offer to Prove.—An offer to prove presents no question when made in connection with ■ an objection to a question asked on cross-examination. p. 549.</p> <p>16. Trial.—Reception of Evidence.—Offer to Prove Where No Question Pending.—No question as to exclusion of evidence is presented by an offer to prove made when no question asked the witness was pending, p. 549.</p> <p>17. Trial.—Reception of Evidence.—No Offer to Prove.—No question of the exclusion of evidence is presented when no offer to prove is made in connection with a question asked, p. 549.</p> <p>18. Appeal.—Waiver of Assigivments.—Briefs.—Errors assigned, but waived by failure to state any proposition or point with reference thereto, are not to be considered, p. 550.</p>

Prom. Pulaski Circuit Court; Smith N. Stevens, Judge. Proceedings by the incorporated town of North Judson, opposed by the Chicago and Brie Railroad Company and others, for the annexation of contiguous territory. Prom a judgment for remonstrators, the petitioner appeals.

From Huntington Circuit Court; Samuel E. Cook, Judge. Action by the Farmers Trust Company against Mary L. Sprowl, administratrix of the estate of John S. Sprowl, deceased. From a judgment for defendant, the plaintiff appeals.

<p>Lotteries.—Gift Enterprise.—Public Policy.—Statute.—A contract Tor an advertising campaign promoted by an agency furnishing stamps to retail merchants, who agreed to distribute them among their customers, and which were exchangeable for tickets entitling the holder to ■ an undivided interest in an automobile to be furnished by the agency and to be disposed of by a method to be determined upon at a meeting of the ticket holders, where the tickets stated that “the meeting may decide to raffle off the automobile using the numbered stubs to draw from,” and where each ticket represented the proportionate value of less than one cent, held void as against public policy and as in violation of §2464 Burns 1914, Acts 1905 p. 584, it being contemplated that the ticket holders would agree to dispose of the machine by lottery to one of their number.</p>

From Delaware Circuit Court; Luther F. Pence, Special Judge. William A. Spurgeon appealed to the circuit court from the action of the county board of review in adding to the schedule of his personal property certain omitted property. From an adverse judgment, he appeals.

<p>1. Master and Servant.—Worlcmen’s Compensation Act.—Industrial Board.—Jurisdiction.—Under §45 of the Workmen’s Com- • pensation Act, §8020e2 Burns’ Supp. 1918, as amended by Acts 1919 p. 158, the Industrial Board has a continuing jurisdiction over eases coming before it, where awards are made, and it is expressly authorized, where change in conditions is shown, to end, lessen, continue or extend the payments previously awarded, p. 591.</p> <p>2. Master and Servant.—Workmen’s Compensation Act.—Aioard. —Application for Review.—Receipt in Full.—Effect.—Where the Industrial Board made an order for the payment of an award in a lump sum, which the employer paid to the injured employe in cash, the fact that the employe gave a receipt therefor or reciting that he received such sum “in full satisfaction and discharge of all liability of the employer to me” did not affect the right of the Industrial Board to allow additional compensation on account of a change of conditions, in view of §15 of the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 Burns’ Supp. 1918, as amended, Acts 1919 p. 158) providing that no contract or agreement, written or implied, shall in any manner operate to relieve any employer of any obligation created by'the a.ct. p. 593.</p> <p>3. Master and Servant.—Workmen’s Compensation Act.—Award. —Payment in Lump Sum.—LiaMlity for Additional Compensation.—Change in Conditions—“The approval by the Industrial Board of a lump-sum agreement in settlement of an award, and the payment of such sum did not have the effect of extinguishing compensation liability of the employer arising from a change in conditions on account of the original injury occurring subsequently to such approval, p. 594.</p>

<p>1. Negligence.—Proximate Cause.—Combination of Causes.— Where several causes, dependent or independent of each other, all contribute to an injury, an action may, in a proper case be founded upon all or any of the causes; and where two causes combine to produce an injury, both being proximate, one the result of negligence, the other an incident as to which neither party is at fault, the negligent party is liable if the injury would not have happened but for such negligence, p. 600.</p> <p>2. Negligence.—Proximate Cause.— Determination.— Intervening Agency.—In determining what was the efficient cause of an injury, the test is to be found, not in the number of intervening events or agents, but in their character, and in the natural and probable connection between the wrongdoer and the injurious consequence, p. 604.</p> <p>3. Negligence.—Proximate Came.—Intervening Agency.—Where there is an intervening responsible agency which directly produces an injury, the question whether the original negligence is to be regarded as the proximáte cause or only as a condition or remote cause is to be determined by ascertaining whether the intervening agency ivas of such a character, and the circumstances under which it occurred were such that it might have been reasonably expected that such an agency or a similar one would intervene in such a way as to be likely to' produce an injury similar to the one actually caused, and if, under the circumstances, the intervention of such an agency, and the manner of its occurrence, might reasonably have been expected in the usual course of events and according to common experience, then the chain of causation from the original cause is not broken, and the original act will be treated as a proximate cause, p. 608.</p> <p>4. Negligence.—Proximate Caxise.—Intervening Agency.—An intervening agency over which the original tort feasor had no control, and which was not put in motion by the original negligent act, will be treated as the sole proximate cause of the injury produced, where the character of the intervening agent, and the circumstances surrounding the intervention were such as could not reasonably have been expected to occur in the ordinary course of nature and according to common experience, p. 608.</p> <p>5. Municipal Corporations.—Public Partis.—Negligence in Management.—Personal Injuries.—Proxiniate Cause.—Where a municipal corporation, which, as a part of a public park, assumed control of a part of a river and maintained it as a place' for boating, allowed barbed wire to remain in the bed of the stream and, when a canoe was overturned by a collision with a racing motorboat, a swimmer who attempted to rescue a woman thrown from the canoe became entangled in the wire and was drowned, • the negligence of the municipality in permitting the wire to remain in the river was not the proximate cause of the death, but was a mere incident in the chain of circumstances leading ■up' thereto, the proximate cause being the negligence of the per- ■ sons in; charge of the motorboat; nor does 'the fact that the city had,placed a motorboat on the river to inspect it daily and keep it free from obstructions, and to protect the lives of those who were boating, make such negligence of the city the proximate ''cause. ' pp. 609, 610, ...</p> <p>6. Municipal Corporations.—Public Parka.—Management.—Care Required.—Where a city, as a part of a public park, assumed control of a river and maintained it as a place for boating, the city was bound.only to exercise care commensurate -with the dangers likely to occur, and reasonably to be anticipated from the use of the river for the purposes for which it was intended. p. 610.</p> <p>7. Negligence.—Proximate Cause.—Proximate cause is the efficient cause, the one that necessarily sets the other causes in motion. ' p. 610.</p>

<p>1. Banks, and Banking.—Checks Signed m Blank.—Blanks Wrongfully Filled—Liability.—As between bank and depositor, a ebeek signed in blank by tbe latter is valid, though it fell into the hands of a scoundrel, who filled the blanks and presented it to the bank for payment, p. 615.</p> <p>2. Banks and Banking.—Checks.—Identity of Payee.—Ascertavnment by Bank.—A bank on which a check is drawn must ascertain at its peril the identity of the person therein named as payee, p. 615.</p> <p>3. Banks and Banking.—Payment of Checks.—Identification.— Where a check is presented for payment by a person unknown to the bank, it becomes the imperative duty of the bank to require him to properly identify himself as the payee named in the cheek, and for its own protection the bank may refuse payment until the stranger brings in some financially responsible person known to the bank, and who is willing to become an indorser, p. 615.</p> <p>i. Appeal.—Instructions.—Evidence Not in Record.—Harmless Error.—Where the evidence is not in the record, it may not be said on appeal that instructions given were erroneous or harmful. p. 616.</p>

<p>1. Sales.—Evidence.—Sufficiency.—In an action for balance due for straw sold, testimony of the plaintiff as to what he was to receive per ton for the straw, corroborated to some extent by' two other witnesses, was sufficient to sustain a verdict for plaintiff. p. 617.</p> <p>2. Appeal. — Review. — Weighing Evidence. — Credibility. —'The weight of testimony and credibility of witnesses were matters for the jury, and not for the Appellate Court, p. 617.</p>

<p>From Gibson Circuit Court; Simon L. Vandeveer, Judge.</p> <p>Action by James L. Becords and Theodore O. Love-land, copartners, against George W. Smith. From a judgment for defendant, the plaintiffs appeal.</p>

<p>From Marshal Circuit Court; Smith N. Stevens, Judge.</p> <p>Action by Noah N. Smith against William B. Yost. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Divorce.—Suit Money.—Application to Appellate Court.—An application for an allowance of suit money cannot be presented to the Appellate Court in the first instance, since there is no statute authorizing that court to make such an allowance, p. 642.</p> <p>2. Appeal.—Briefs.—Amending.—Review.—Where, after objection to his brief on account of noncompliance with rules of court, appellant has, by leave of court, filed an amended or supplemental brief to meet the objections, wbicb, with the original brief, shows a good-faith effort to comply with the rules of court, and taken together are sufficient to enable the Appellate Court to determine the matters in gontroversy, the appeal will be decided upon its merits, p. 642.</p> <p>3. Divobce.—Parties.—Public.-—In appeals -in divorce eases there are three parties in interest, the appellant, the appellee and the public, p. 642.</p> <p>4. Divorce.—Appeal.—Reviewing Evidence.—In appeals in divorce cases the evidence will be reviewed to determine whether the uneontradicted facts present a legal ground for divorce, p. 642.</p> <p>5. Divobce.—Collateral Issues.—Determination.—Effect.—In a divorce case a finding that the wife was a proper person to have custody of a ten-year-old child, after evidence of adultery on her part, is by implication a finding of not guilty of adultery though the husband be granted a divorce, adultery not being charged as a ground for divorce, p. 645.</p> <p>6. Divorce.—Cruel and Inhuman Treatment.—False Charge of Adultery.—Where a husband during the trial of a suit by him for divorce charges his wife with adultery, both inside and outside the courtroom, and marshals witnesses to prove such charge on an issue as to the custody of a child though he had not pleaded it as a ground for divorce, and had_so accused her in the presence of their little daughter, a finding amounting to an acquittal of the wife of such charge shows the husband to have been guilty of cruel and inhuman treatment in making a false charge of adultery against his wife. p. 645.</p> <p>7. Divorce.'—Clean Hands.—Applicant Guilty of Ground for Divorce.—The applicant for a divorce must be innocent as well as the injured party, and if he is liable to a charge which is ground for divorce, he cannot obtain one, though his wife may have misconducted herself, p. 646.</p> <p>3. Divobce.—Duty of Court.—Appeal.—It being the duty of the trial court, representing the state as an interested party, to elicit the facts and grant or withhold a decree of divorce accordingly, the Appellate Court will reverse a decree as contrary to law, where the record shows the successful party guilty of a ground for divorce, p. 646.</p>

From Warrick Circuit Court; Marshall R. Tweedy, Judge. Action by Fairbanks, Morse and Company and others against William M. Gardner and others. From a judgment for defendants, the plaintiffs appeal.

<p>1. Appeal.—Waiver of Error.—Sufficiency of Complaint.—Failure to Demur.—Insufficiency of a complaint for a want of facts is waived by failure to demur thereto, p. 659.</p> <p>2. Appeal.—Review.—Instructions.—Use of Streets.—Duty of Automobile Driver.—In an action for personal injuries sustained by plaintiff when defendant company’s automobile was backed against him, an instruction that it was the duty of the driver, while backing, to use unceasing vigilance and the highest degree of care so as not to injure any one behind him, was erroneous as invading the province of the jury to determine the degree of care that should have been exercised under the conditions, p. 659.</p>

From Madison Superior Court; Willis 8. Ellis, Judge. Action by Annon Wesley Maynard and others against Alvis F. Hancock, trustee, and others. From a judgment for plaintiffs, the defendants appeal.

<p>From Hamilton Circuit Court; Ernest E. Cloe, Judge.</p> <p>Action by Mamie Mace against Huron Tribe, No. 117, Improved Order of Red Men. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>1. Adverse Possession.—Unproductive Lands.—Running of Statute of Limitations.—Where land sold at a tax sale was not capable of practical cultivation and could not be used profitably for any purpose, and was without buildings or fences, the purchaser, by immediately going upon the land after receiving the tax deed, locating the corner stones and stakes by the aid of a map, and by visiting the land and claiming ownership thereof, and exercising all acts of possession, control and ownership of which the land was susceptible, as fully and completely as other landowners in the neighborhood exercised over like lands, had sufficient adverse possession to start the running of the statute of limitations, p. 689.</p> <p>2. Limitation of Actions.'—Sale of Land, for Nonpayment of Taxes. —Action for Redemption.—Limitation.—Statute.—Where the purchaser of land sold for delinquent taxes and his successor in interest were in adverse possession of the land under claim and color of title for a period of seventeen years, an action to redeem from the tax sale was barred under §296 Burns 1914, §294 R. S. 1881, providing that all actions not limited by any other statute shall be brought within fifteen years, p. 689.</p> <p>3. Taxation.—Sale of Land for Nonpayment of Taxes.—Action for Redemption.—Laches.—Estoppel•—Where no attempt was made to redeem land sold for the nonpayment of taxes until seventeen years thereafter, and not -until the land was rapidly advancing in value, though during such time delinquent taxpayer’s grantee had full knowledge .that the land was in the adverse possession of the' purchaser, and lhat the prarehaser was making valuable improvements thereon, and where no steps were taken to reimburse the purchaser or his successor in interest for the improvements, the delinquent taxpayer’s grantee was estopped by laches from maintaining an action to redeem, p. 690.</p>

From Bartholomew Circuit Court; John W. DonaJcer, Judge. Action by the State of Indiana, on the relation of Carl J. Carter, prosecuting attorney, against the Farmers Elevator Company. From a judgment for defendant, the relator appeals.

<p>From Greene Circuit Court; Theodore E. Slinkard, Judge.</p> <p>Action by George W. Topping and another against the Vandalia Railroad Company. From a judgment for plaintiffs, tbe defendant appeals.</p>

<p>1. Appeal.—Review.—Verdict.—Complaint.—Where there are several paragraphs of complaint stating substantially the same cause of action, a verdict for plaintiff will stand if the evidence is sufficient to establish one of the paragraphs, p. 702.</p> <p>2. Appeal.—Review.—Waiver of Error.—Where appellant in its brief states that it does not desire to discuss any questions except those arising under the assignment of error that the court erred in overruling the motion for a new trial, all questions with reference to the sufficiency of paragraphs of complaint presented by error assigned on the overruling of demur- ' rers thereto are waived, p. 703.</p> <p>3. Appeal. — Review.— Instructions.— Brief.— Where appellant’s brief does not show that purported instructions set out therein as given or refused were signed by counsel or trial judge, or that the purported instructions set out were all the instructions given, or that they were made a part of the record either by an order-book entry or by a bill of exceptions, no question is presented for review as to the giving or refusing of instructions. p. 703.</p> <p>4. Master and Servant.—Injuries to Servant.—Contributory negligence.—Workmen’s Compensation Act.—Under §10 of the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918), an employer electing not to operate under the act cannot make the defense of contributory negligence in actions to recover for the injury or death of employes, p. 704.</p> <p>5. Master and Servant.—Injuries to Servant.—negligence.— Proof.—Res Ipsa Loquitur.—In an action against the master for the wrongful death of .a servant,. evidence showing that a mine employe was killed when. crushed by a runaway coal car which was released when a coupling link broke near the weld, and that it was not unusual for one or two of such links to break within a week, made out a prima facie ease of negligence, and, on the failure of defendant to offer any evidence in contradiction or explanation, the doctrine of res ipsa loquitur became applicable, and defendant stood convicted of negligence, p. 704.</p>