Martinsburg statesman-democrat. [volume] (Martinsburg, W. Va.) 1906-1921, 1912-05-03
NEWCOMER LOSES CASE
All Evidence of Plaintiff, Except Ten
Dollars Worth Of Ducks, Exclud-
ed 6y JUDGE DALEY


ed BY Judge Daley
The Circuit Court has been engaged
during the past week in the trial Of
the case of B. B. Newcomer against
the City of Martinsburg for $4,000
damages alleged by plaintiff to have
been sustained on account of the pol
luton to the waters of Tuscarora
Greek.
In August of 1910 three suits We're
instituted for damages aggregating
$4,000 against the City of Martins
burg by S. ]. Dixon, B. b. Newcom-
er and Frederick Snyder, owners or
occupiers of lands adjacent to Tusca-
rora Greek, east of town, for alleged
loss of cattle, horses, fowls, injuries
to business and losses incurred by the
plaintiffs IN consequence of the sew
age disposal of Martinsburg into the
creek and it's tributaries. These suits
proceeded slowly, at all times being
urged by plaintiffs and resisted by de-
PENDANTS until finally they were plac-
ed in the hands of Hon. r. w. Daley,
Jr., of Romney, Judge of the Seven
teenth Judicial Circuit. Judge Faulk-
ner was disqualified from presiding,
not because of any interest in the cas-
es, but because of his ownership of
lands along the same creek and he
thought that he could not properly
preside.
When the court convened Monday,
+1,o naca0 having haat, cat For that 6QV
the court room was filled with inter-
ested spectators, witnesses and jury
men. The counsel for B. B. Newcom-
er asked the trial of his case first, but
the Court announced that the cases
would be taken up as they appear up
brought Dixon first.
A motion was made to continue the
Dixon case because of the absence of
material witnesses and the inability
of the plaintiff to secure certain docu-
mentary evidence vital to his inter
ests. The City's attorneys resisted the
motion for a continuance, announcing
that they had prepared for the trial
of this case, and it was only after the
necessary affidavit had been filed that
Judge Daley granted the continuance.
After the noon recess counsel an
nounced that they were ready for tri-
al in the Newcomer case and jury
was at once empanelled. The first
witness was the plaintiff, B. B. New
conner, who testified to the various
item of damage set up in his bill of
particulars. These items consisted
of $1100 for loss of cattle; $500 for
milk; $4,000 for loss of pasture; $500
for loss of calves and injury to their
mothers; $500 for loss of colts; $500
for loss of mare; $500 for injury to
person; $500 on account Of offensive
odors, etc, and $40 for loss of ducks.
During the course of the examina-
ton in chief it was developed that
Newcomer and t. F. Eichelberger
were jointly interested in the losses
claimed and the defence at once set
up the plea of partnership which plea,
If established, would defeat the plain
tiff's individual action. The counsel
for defense went into a rigid cross ex-
animation and developed testimony
which showed that there we're grounds
for the defendants plea. Arguments
were made at the afternoon session
and continued until Tuesday on
this issue and the court finally decided
that partnership did exist and ex-
cluded all of the evidence of the plain
tiff except as to the ducks valued at
ten dollars. On this item alone the
case went to the jury and was argued
by counsel for few minutes, and at
11.30 the jury retired to consider what
verdict they should render The jury
was not long in considering, and filed
into the court room at exactly twelve
o'clock and through Thomas w.
Kearns, foreman, handed their YER
dict to the clerk. The verdict was as
follows:
I'VE the jury on the issues joined,
find the defendant not guilty. (Signed)
Thomas w. Kearns, foreman"
The plaintiff at once made his mo-
tons for arrest of judgment and to
set aside the verdict of the jury
The case was conducted by d. w
Snyder, Jr., and Forrest w. Brown for
the plaintiff and Chas. E. Williams S.
w. Walker and j. NJ. Woods for the
defendant.
The s. ]. Dixon damage case was
continued to the September term OF
court.
Cases Continued.
The case of Frederick Snyder
against the City of Martinsburg was
continued until the September term OF
the court The first thing done al