The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1904-01-16
HIGHER COURTS RECORD.
COURT

2O24O. Long, ETC., Co. VS.. Barnes. Boone
c. G. Affirmed. Hadley, il. The person
the open and close. 2. When it is not
necessary for the plaintiff to introduce any
evidence to entitle him to recover, the bur-
den of proof is upon the defendant to prove
his affirmative defense. 3. an instruction
is not erroneous for failure TO specify what
constitutes the material averments in a
pleading. 4. The court is not bound TO
instruct the jury that it should find a fact
that which is admitted to be a fact.
20252. Winters VS.. Coons. Randolph c.. G.
Affirmed. Jordan, J.-Where a bill of ex-
ceptions is settled and signed by an at
torney for appellant, in the trial court, but
who was subsequently appointed judge of
the court, such bill of exceptions cannot be
regarded as a part of the record and the
evidence therein will not be considered.
1885. Giller vs.. West. Marshall C. c.
Reversed. Bowling, il. Where actions
for the recovery of real estate and to quiet
the title thereto and for enjoining the con-
struction of a fence are improperly Joined
be separated and docketed as distinct ac-
tons. 2. The fact that a division fence as
erected by one party is close, hig and
and cuts off the view of the adjacent own
er towards a street. and shades and injuries
a garden thereon does not render such fence
a private nuisance.
1886. Dunn VS.. State of Indiana. Allen
c.. c. Rehearing granted.
20244. Hancock VS.. Plate Glass Company.
Howard S. c. Oral argument Jan. %, 1904:
~ ~ OHAR~H =" -
tier. Grant C. c. Oral argument Feb.
3, 1904.
Certiorari granted and issued.
1867. South Bend, ETC., Company VS.. FL
deity, etc, Company. st. Joseph c. c..
Petition for transfer denied.
Minutes
2O176. Winfield S. Sewers ct al. VS.. c., r.
& NJ. r. r. ct al. Miami c. c. Brief of
appellee c., r. & NJ. r. r. C). Brief Of
appellee on cross errors.
241O9. Frank H. Keiser ct al; VS.. William
A. Mills ct al. Hamilton c.. c. Appellees'
petition and brief for rehearing.
202S5. Henry c. Sellers vs. James A. Hayes
ct. al. Upton c. c. Certiorari granted and
issued.
New Cases.
2O2S6. The Advisory Board of Washington
township, Newton county. VS.. State ex rel.
James a. Whaley. Record. Assignment
of errors. In term. Bond.
5121. The Manhattan oil Company VS.
Harry B.. Carroll. Wells c. G. Record.
Assignment of errors. In term. Bond.
APPELLATE COURT.
1915. Union Traction Company VS.. Van
dercOok. Delaware c. c.. Affirmed. Robin
son, il a person about TO cross an cleo
trio railway crossing in a vehicle is not
bound TO presume that If a car approaches
such crossing while he has the right Of way
it will be running at a high and dangerous
rate Of speed. ?. Where a mOtorman sees
a person upon a crossing and can stop his
car before he reaches such person it is his
duty 10 do so, in order 10 prevent accident.
8. IL is not every act Of negligence on the
part OF an injured person that will defeat
a recovery; but only such negligence as
materially contributes To the accident. t.
When answers 10 in~terrogatOris are incon-
sistent they neutralize each other and will
be disregarded.
ash. Hammond. etc. Railway Company VS..
Eads. Lake c. c. Affirmed. Henley, {. j.
Where a person sees another il a position