The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1916-03-25

Ing not over twelve or fifteen miles
nm hour, and was keeping careful
lookout and was not BIgnaIIed To stop.
and did not sec the lights on the rear
end OF the standing train, on account
OF short curve and the darkness and
/ fnEEtHeHs OF the night. until II was 40
close az to make 1t impossible TO stop
/ his engine in time 10 avoid the COLL
( sion. he having right. under the rules
OF the defendant company, to expect
signal In timH to stop. In case the
foremost train should stop on the
main line.
"2. 1t being the duty of the rear
brakeman, under the rules OF the
company. when his train stops and Is
liable TO he Overtaken by another
train, 10 80 back along the track and
protect 1t by certain signals. to he
given or placed on the track. and the
| duty also Of the conductor to see that
he does so. when the train make Il
regular stop. known to the conductor.
the engineer IL moi required to signal
the flaEman 10 protect The train. In
the absence OF rulG or established
custom among the trainmen requiring
him to do so In such case.
%. UudGr the federal employers
liability act carriers liability de-
ponds on negligence. and the evidence
must establish actionabIe negligence.
with reasonable certainty, before
there can be recovery. Negligence
will not he inferred from proof Of
facts and circumstances which are
just as consistent with due diligence
as with some theory of negligence
-. There Is no liability on Il rail-
road company for tho death of an
cmploye, caused wholly by his own
negligence. or by mere accident.
IS. A railroad company Is not
bound to provide walk-wAys or guard
rails on its bridges and trestles for
the protection of Its employees.
6. The doctrine OF assumption Of
risk is not wholly abolished by the
federal employers liability act. An
employe Of railroad company, en-
gagged In Interstate commerce. as
sumes the ordinary hazards of the
business in which he engages. not
arising out Of the company's negIl-
gence or the negligence of It's officers
or other employees.
The standard OF care required
of railroad company in the con-
strncti0n.a and maintenance of its
road, bridges and trestles, Is such rea-
sonable care and skill as is ordinarily
employed In that respect by railroad
companies in general"
State against Littlct0n.
The decree of the circuit court of
Marshall county was reversed and a
new trial was awarded in the case Of
the state against LittIet0n: Mason,
Judge. The syllabus Is as follows:
II. Where count In an indict-
ment properly alleges both house
breaking and larceny. there may he
conviction for either. but not of
both; on a general verdict OF guilty
on such count. the judgment should
be for house-breaking and not for
larceny.
SO. The possession of stolen goods
is not of itself even prtma facie evil
dence that the person in whose pos
session the stolen goods are found.
is the thief. or that he Is guilty Of
breaking and entering the house from
which the goods were stolen; but the
exclusive possession and control OF
property recently stolen. are Circunl-
stances tending to show that the per-
son found in possession Is the thief,
and the jury may consider them in
connection with all the other circum-
stances and facts in proof.
9. Though the mere possession of
property recently stolen from the
house which has been entered, Is not
even prima facle evidence of the
housebreaking charged in the lndict-
mcnt, yet nconnection with other
evidence OF such offense. evidence Of
the exclusive possession of the stolen
property. Is admissible.
"a Whether the party shall be
permitted to introduce further evil
dence after the case has been closed
and submitted to the jury, and before
the jury returns n verdict, is a mat
ter OF sound discretion OF the trial
court, and its exercise of this discre-
tionary power will not he cause for
reversal except in case OF the abuse
of the discretion. and that it plainly
appears that tho person making the
request has been injured by the re-
fusal."
State against Shelton.
In the case OF the State against
Shelton, from Mcdowell county, the
Judgment Of the lower court was af-
firmed: Mason. judge. The syllabus
is as follows:
Il. Where an Indictment contains
two or more counts-all good--and
the charges therein IRE of the same
general character. and the counts are
manifestly inserted to meet different
phases OF tho evidence, the indictment
will not be quashed. neither will the
prosecuting attorney be required to
elect on which count he will proceed
to trial.
$50. 1t is not material that a COM
mon gaming-house should be kept
for lucre or profit. and in prosecu-
ton for such offense, the court may
instruct the jury that 1t is not neces-
sary for the state to show that the
defendant kept the gaming-house for
gain or lucro or profited therefrom.
"3. Where a proper instruction
has already been given upon n point
in a case, the court may refuse other
Instructinng fnndnred which would