The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1916-03-05
Holds That Fright from a Train
Regularly Run Does Not
EntitIe to Damage.

EIllIlIe 10 damage.
CHARLESTON. Mar. 4.-Scyen de-
cis!ons were announced this week by
the supreme court nf upneaIs, TWO OF
them being from kanawha, two from
Harrison, two from lewi3 and one
from Mincra, county. The judgment
~ rhc kanawha circuit court was af-
ilrmcd IN the case Of the South Penn
Oil Company and others against tho
Blue Creek Development Company and
others.
An oil and gas lease on fifty acres
Of valuable land on Blue creek Is in
yOlycd. A large number of persons
we're interested in the outcome OF the
case, The clerk OF tho court having re-
cciycd many telephone inquiries about
il in the last few days. The syllabus
Of the opinion, by Judge Williams, is
as follows:
81. 70 have the effect OF constitute
tive notice 10 subsequent purchasers,
a deed must be duly executed and
properly acknowledged or proven be-
fore it is recorded.
~. A deed containing n certificate
Of Acknowledgement unsigned by the
notary. by whom the acknowledge
mcHt purpnrts to haze been taken.
and not otherwise proven, is not n
reCOrdab!e paper.
"3. The admission OF a deed and
an unsigned certificate OF acknowl-
edginCni thereon to record, by the
clerk of the county court. and tran
scrihing it into the record book, does
not constitute LuCh deed q part OF the
record. so rs To affect a subsequent
purchaser Of the land thereby con-
VcyCd with constructive notice there
OF.
4. Where. In Il suit involving con-
iliCting interests in land, plaintiff in
PRODUCES in evidence an original deed
on which is endorsed the clerks GER
titlcate admitting it and the CGrtifi-
cate Of acknowledgment thereon TO
record. such certificate of acknowledge
ment bearing the nOtary's signature;
and the defendant presents in evil
drnCe a copy thereof, attestcd by the
clerk, showing the certificate of the
notary to be unsigned. discrepancy
is thereby shown to exist in the dncu-
mcntary evidence of the record, and
parol evidence is admissible to deter
mine whether or not the notary's GER
titlcate was signed before or after the
deed was admitted to record. Evidence
iii such cases does not COllaterally
as all=the recortl,. butts proper 10 de-
termine what is the true record.
.. He who AYERS that another pur-
chased with notice of his superior
right, has the burden of proving such
notice, either actual or constructive;
while such other must prove that he
is n complete purchaser for valu-
able consideration.
&c. This court will not reverse a
finding OF fact on conflicting oral tes-
timony, unless such finding is against
the clear preponderance OF the evil
dence."
In the case of Kunkle against the
Baltimore and Ohio railroad. from
Harrison county. the decree of the
lower COURT was reversed and the ac-
ton was dismissed; Mason, Judge.
The syllabus is as follows:
while the plaintiff was riding his
horse along the public road, parallel
to and adjoining the railroad, and
while a freight train consisting OF
forty or fifty loaded cars was passing
along the railroad. the horse, fright
ened at the noise or from the sight of
the moving engine and cars. became
unmanageahle and beyond the control
of the rider.
The rider got off the horse and
turned it loose near the railroad track
and the horse ran near The railroad
tracks and by the side Of the NOV
ing train in the same direction the
train was running for about half a
mile. and then jumped over an en-
bankment aud was killed.
NO part OF the train touched the
horse; there was no unusual or un-
necessary noise in the movement OF
the train. and no act OF negligence on
the part of the trainmen in operating
the train. The railroad company un-
der the circumstances is not liable for
damages for the destruction of the
horse"
The Judgment Of the Kanawha cir
cult court was reversed and the cause
was remanded for new trial in the
case of Petry against the Cabin Creek
Consolidated Coal Company; Mason,
Judge. The syllabus is as follows:
~. A corporation engaged in the
business of mining and removing coal,
and using cars in the mine for the
purpose OF hauling coal from one part
nf the mine to another. has the right
10 prevent. in proper way, the em-
ployes working in tic mine from rid
ing oil such cars.
- The defendant. a corporation
engaged in The business of mining
and removing coal. adopted the fol-
lowing rules for the government OF
It's employees, namely: Rule No. IL:
All persons who ride upon the incline
or upon any ear. engine or motor. do
SO AT their own risk. Rule 80. Is: No
einplOyc Shall travel 10 or from his
work upon any slope. plane or mo-
tor road when any other road is pro-
vidcd or may he used, and employees
shall! also avoid as far as possible us
ing any halfway In travelling TO or
from their work. hut where 1t becomes
necessary 10 travel any slope, plane or
motor road. or halfway employees
must use every prccaution to prevent
accident to themselves and Others
Held: That II such corporation shall
knowingly and habItually permit It's
employees 10 disregard such rIles, 1t
may be presumed that the rules have
becr suspended.