The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1915-11-14
MANY DECISIONS AR e
HANDED DOWN By THE
STATE SUPR F. NE COIJR I

lnlSousn reasonably dlngent, did not
see the stock in time to avoid injur-
ing them, defendant is not liable: nor.
IN such circumstances, is q directed
verdict for defendant erroneous.
3. The paramount duty. of car
rier's agent is to protect the property
entrusted to them; and their actual
and necessary attention to perform
ance Of such duty, when established
yb proof not contracted, does not au-
thorfze an inference OF negligent oper-
alton. .ts & -
4. Nor does the actual employment
OF the agents time in, doing what the
situation demanded, when usual ana
essential, necessarily imply defective
ness OF equipment, furnished by, the
carrier. To constitute negligence,
warranting recovery therefor, the de-
feet must afirmatively appear from
the proof.
5. While negligence is generally a
mixed question of law and fact, for
jury determination only, yet when tina
negligence averred Is not proved, or,
as In this case, disproved, by plain
tiff, the question need not be submit
ted to jury. 4
IS. "A declaration need not specify
the particular negligent act or defect
relied on % the basis Of recovery. A
general averment Of negligence or de-
sfective equipment sufices.
Judgment Affirmed.
In the case Of. Booth against the
Baltimore and Ohio Railway Company,
the judgment Of the Harrison circuit
court was affirmed; Lynch, Judge. The
syllabus:
1. The marriage Of q woman after
injuries negligently inflicted by car
;rier in the operation Of its trains,
does not affect her right to recover
damages for the loss Of time and ca.
pacity to earn. money, due to such IN
juries. An instruction,in effect SO IA.
forming the jury, is properly given.
2. A judgment in an action for per-
sonal injuries inflicted by a carrier
will not be reversed for failure to
prove the value OF professional ser.
vices OF a physician treating plaintiff
to effect a cure, when the amount OF
the charges therefor Is not shown in
the case; nor, when shown, Il the
court can see the amount thereof is
obviously not unreasonable.
Judgment Entered.
The judgment Of the Monongalia
circuit court in the case OF Malone
against Davis, was reversed and judg-
ment was entered here; Miller, Judge.
The syllabus: 4
i. In detinue the general plea, NON
detinet, as at common law. puts in
tissue the plaintiffs right and title to
| the property sued for, as we'll as tho
fact Of its detention by defendant.
The more modern English rule OF
practice to the contrary does not pre-
vail in this state.
Q. Where on the trial Of such &C
ltion the value Of the property sued
for, as found sby the jury, is excessive
Ebut the verdict is otherwise correct
| q new trial, IL based on such enron
eous finding, should be limited &c
tissue, and the verdict as whole
l.should not be set aside and a new
trial awarded on all issues. And, Il
lin such case the plaintiff valves an
alternative Judgment for the value Of
1.-The property the court should give
Judgment for plaintiff for the posses:
I:sion OF the property alone.
8. Where in such case the motion
Eof defendant to set aside the verdict
and award him a new trial: among
Others; is based on the ground OF some
supposed improper statements or re
marks Of opposing counsel, during the
trial or In the course sof the argument
in the presence Of the Jury. in the alb
sence Of anything IN the record show