Dissenting Opinion.
Rabb, J.Without reference to conflicting decisions of courts of last resort, I think that the fundamental principles governing the law of negligence requires one who is engaged in the manufacture of an article, which if defective will be dangerous to' human life, to exercise ordinary care to discover the existence of such defect in the article he manufactures before he puts it on the market and places it where it is liable to injure some one, and that the exercise of this care is a duty which the manufacturer .owes to all who come within the danger to be apprehended from the existence of the defect, regardless of whether they do, or do not, sustain contractual relations with the manufacturer.
In this ease the article in question is a steam boiler, belonging to a threshing outfit. The defect, alleged in the complaint to have existed in the boiler when appellee put it on the market, was of such character that appellee was bound to know that if it existed his boiler was a thing of danger to those at work about it, when being used for the purpose for which it was manufactured, and with this defect in the boiler, it was liable to explode when in use, and kill and maim an entire threshing crew. In my opinion there is no room, within the reason and logic of the law, to hold that the manufacturer owed no duty to those who would be thus put in jeopardy by such a defective machine to exercise ordinary care to discover the defect before putting out the machine for use, and, such being my view, I think the averment in the complaint, that the condition of the boiler was known, *40“or by the exercise of reasonable diligence on part of appellees could have been known by them at the time the boiler was sold,” was equivalent to the direct averment that they did know the fact. Malott v. Sample (1905), 164 Ind. 645; Evansville, etc., R. Co. v. Duel (1893), 134 Ind. 156; Heltonville Mfg. Co. v. Fields (1894), 138 Ind. 58; Louisville, etc., R. Co. v. Miller (1895), 140 Ind. 685; Consolidated Stone Co. v. Summit (1899), 152 Ind. 297; Johnson v. Gebhauer (1902), 159 Ind. 271; Consumers Paper Co. v. Eyer (1903), 160 Ind. 424; Zeller, McClellan & Co. v. Vinardi (1908), 42 Ind. App. 232.
I think the complaint was sufficient to withstand demurrer.