Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-03-10
BY THE COURT Of APPEALS
OPINION IN CLARA AGAINST
SOUTHERN RAILWAY.
Lower Court Reversed and New Trial
CHARACTERIZATION in Other
Causes.

| The District Court of Appeals in an
| opinion by Chief Justice Shepard today
reversed the judgment of the District Su-
| preme Court and directed a new trial of
the case of Dominica Clara against the
| Washington Southern Railway Company.
| Clara. labOrer employed by a contract
| ing firm in constructing a double track
! for the railroad near Franconia, Va, No
vember -. 1904. was run down by loco
| motive as he was crossing the tracks on
| his way from work TO the .'shanty' which
he occupied with other Italian laborers.
| A high bank and curve. it was claimed,
prevented the train being seen by the
| man in time to avoid the accident.
The lower court erred in instructing a
verdict for the defendant, the Chief JUS
| tice declares. because while it may seem
| likely from the evidence that the plain
tiff could. in fact have paused, looked
and listened. with ordinary care, without
seeing or hearing the coming train. it
cannot justly be assumed, with the reQui-
| site certainty. that he must have heard or
! seen 1t had he done so. In the absence
of such certainty it was a question for
the jury as to contributory negligence.
Case Remanded.
| lie CnleI Justice also delivered the
opinion of the court on the appeals OF
Charles F. Consaul and Ida NJ. Meyers,
administrators Of the estate of Gilbert
Meyers. against Horace S. Cum
mings, administrator of George B. Ed
monds. and of Horace S. Cummings
against Consaul and Meyers. admins
! traitors In the latter case so much of
the decree as has been appealed from by
| Cummings is affirmed.
To- -
| District, Supreme Court is affirmed ex-
| cept to three errors in the report of the
| auditor. which are pointed out. AS to these
latter the decree is reversed. The case
is remanded with directions TO restate the
| account. The matter in controversy con-
cerned the settlement of the affairs of
partnership formerly existing between Gill
bert Meyers and George B. Edmonds both
deceased. in relation to the prosecution
of certain claims against the United
States.
Judgment Affirmed.
The appellate court in an opinion by Mr..
Justice Van Orsdel affirmed the judgment
of the lower court in the suit at law in
stituted by Henry p. Morris against Clark
Company and the Mexican Mining and
Exploration Company to secure commits
sions on the sale of the companys stock.
The verdict of the trial court was in
favor Of Mr.. Morris. and in sustaining
that courts action Justice Van Orsdel
says: If the stocks in question was sold
for less price than appellee tMorrfs)
was authorized to take. and the sale
consummated without notice Of The re-
ductiOn in price to him, he Is entitled to
recover his commission on the basis of
the price quoted to him. If they sold
the stock at a greater price than that
given appellee they have not been dam
aged and cannot be heard TO complain"
Brown Against Slocum.
Justice Van Orsdale also delivered the
courts opinion in the case of Q. p. NJ.
Brown against Eva Slocum. n which
the judgment OF the lower court was
affirmed. The Court of Appeals holds
that the charges made by local loan
companies under the guise of comnis-
sions and expenses when loans are ne
gotiated amount to usury, for which |
the borrower may sue and reco:er.
Suit must be Instituted within a year
after the last payment. Hiss SlOcum
borrowed $1S3 60 from the Citizens Loan
and Trust Company, from which was de-
Quoted $4S.GO for commissions and other
charges. The defense claimed that the
suit was barred because more than a
year had transpired from the date the !
money was borrowed.
Case Of Party Wall.
The Judgment of x1,5O as damages TO
a party wall obtained by, Mrs. Ellen Sill |
lers and others against George s. Cooper
is also affirmed by the District Court Of
Appeals in an opinion by Mr.. Justice Van
Orsdel Mrs Sillers and members of her
family owned premises 313 IL street north |
west and Mr.. Cooper in erecting an apart |
ment house adjoining injured the party |
wall.
Other Causes.
Mr.. Justice Van Orsdel also rendered
the opinion Of the appellate court af-
firming the judgment Of the trial court
in the case of Henry X. Simpson against
William S. Minnix. The case CONSTITUTES
for the first time section 1918 OF the Dis
trict code and holds that section abro-
gates the common law rule, and that I'M
der it a judgment creditor is entitled to
a writ OF execution on his judgment at
any time within twelve years after the
date of the judgment without the neces- |
sity of filing in the court an AFFIDAVIT
that the judgment has not been satisfied
The court further decides that the fact
that one of two judgment debtors has
been declared bankrupt does not de-
prive the creditor of proceeding to salts |
fy his judgment against the solvent |
debtor. MinniX secured judgment some !
years ago against Charles B. Fonda and |
the appellant Simpson. and Fonda was |
subsequently, declared bankrupt.