Oxford Democrat. [volume] (Paris, Me.) 1833-1933, 1878-05-14
Large Tcrdicf.
[Ernm the Portland press |

March 9th. 1870 while i'm the employ OF The com
pauy as an engineer upon the morning train com
ing from Lewiston to Portland. The plainiin in
troduced testimony to prove that he hal been In
the employ of this company FOR about % years;
that on the day when he received the injury he
started from Lewiston as engineer OF the psssen-
ger express tram nj 7.25 u. M; that at Pownal he
passed the up passenger train carvings white
flag indicating that a special train was 70 follow
at some time during the day and that such special
train was TO keep out ofthe way OF all other trains
30 that the train upon which the plaintiff was rid
Ing had the right of way. The testimony showed
that he proceeded without interruption until he
reached a place about three-quarters Of a mile
from Yarmouth Junction when suddenly without
warning, he saw approaching through the dense
fog which upon the morning in question concealed
every thing from his view, an engine and tender
running at the rate OF about twenty miles hour.
Seeing that collision wa, inevitable MIR. Cummings
sounded the whistle for the brakes and reversed
his eng inc and attempted to leap from 1t, bat was
too late. The time that was occupied In discharg.
ug his duty 10 those whose lives were under his
charge prevented his taking any means for his own
safety. The two engines came together and Cum
mings was thrown a distance of hfteen feet and
was taken up insensible, with his ribs broken, his
leg fractured, some injuries about the lower part
Of his spine, and n serious injury to his shoulder.
No other person his engine injured excepting
Mr.. WhitehOuse, who rcceyedsuch severe Injuries
that he died the same day. The testimony showed
that the colliding engine started from Portland
following the up passenger train which len Port
land about 4. m, and was running Wild" It be
ing lis duty 10 keep out Of the way Of all regular
passenger trains. This engine was in charge OF
Chas u. Noyes, who had been n fireman on the
road Tor some time and for a few weeks in charge
OF the passenger train running from GorhRm TO
Portland in the absence OF Mr. Walker, the regu.
lar engineer OF the train. On the morning in ques-
ton the engine run from Portland 70 Yarmouth in
charge OF A. Jackson, who desired 70 return 10
Portland, and at Yarmouth the change was made,
Jackson taking tho passenger train upon which
Soyes was running, and Noyes taking the "wild"
engine which had previously been in charge OF
Jacks The rules Of the company require that
Moves should obtain a Crossing order at Var
mouth but instead OF doing this, having only
fireman on the engine beside himself. he signalled
the switchmAn and proceeded until the collision
occurred.
IL Was claimed by the defence that the collision
was caused solely by the fault and negligence OF
Noyts whom the company alleged 20 bo competent
for the duty he was called upon TO discharge. Il
was claimed on the part OF the plaintiff that Noyos
was inexperienced and incompetent for the sitna
ton In which be was placed, that he had but III
tie eAp,r a. an engineer and then under tho
guidance OF competent conductors and brakemcn
on fr, -hi and passenger trains. That the duty
ne was called upon 70 discharge in running the
,I- sba af
the eugine, but also the duties OF conductor In
obtaining clearance orders making crossings and
doing other acts which, by the rules OF the road,
conductor was ordinarily required 10 perform and
that 10; these duties he hal neither age. expert
ence OF ability. The plaintiff also claimed that
the c juipAhy was IN fault in seuding out engine
and tender under the circumstances without a
third person TO act asa conductor, and this prRc-
tice was fraush;w N danger both - - employees
aud the general pablo.
IL WAS admitted that aithc time OF the injury the
plaintiff Wa no. In faux. The testimony showed
without contradiction that the injury 10 the plain
til wa, Of the most serious an awaited nature
making him cripple. for life and deprying him
Of the power TO labor for his own substance and
the support OF has family.
The testimony also disclosed that Mr.. Cummings
was delrious for 90 days after the injury and that
his life was despAired OF, and that he suffered ex
treme pain from his broken bones aud wounds
upon his back, which separated and the nesh
sloug he'd Of 90 that the bones beneath were ex-
posed.
At the commencement of the trial counsel Tor
the defendants moved 10 dismiss the case for want
ofJurisdiction. but the motion Oyerruled. His
Honor Judge shepley, in very able and lucid
charge. occupying about one hour and half, laid
down the rules OF law which should govern the
Jury 10 their examination Of the case and defined
to them the questions OF fact upon which they
were TO pass The following are the chief law
points made b. the Judge:
4 workman or servant on entering Into an etn.
plovmcnt, by implication agrees that he Will I'M
dertAkc the ordinary risks incident 10 The service
ia which he j. TO be engaged, among which IS the
negligence OF other servants employed IN similar
services 10y the same master. "a the other hand
the master or employer implcdly contracts That
he will use due care IN engaging the services OF
those who are reasonably III and competent Ior
the performance Of their cspccuye duties IN the
common scyice, and will take due precautlon 10
adopt and use such machinery, apparatus, Tools,
pplianccs and means, As are suitable ahu proper
for the prosecution VI the business IN Nhlch MS
servants are engaged with \ reasonable degree OF
safety and security against Injury. a workman
OF servant on entering upon any employment -
Incident thereto; II he 1. - work IN conjunction
with others he must know that the eArelessnsss or
negligence Of one of his fellow servants may Oe
productive OF injury 10 himself. lie Knows WAX
no amount of care aud diligence by his master or
employer can by possibility prevent the "AhI OF
due care and caution by his fellow servants Al
though they may have been REASONABLY NJ TOT the
service in which they are engaged. u u JUST anu
reasonable that consequences which the servant
must have fofe-een ON entering into an employ
mtnt and which due care on the part OF the mas
mr. grfRl u
not DC visited on the employer. IL Is wei setucdi
both In England aud America, that master 10
bound 10 use ordinary care In browning nus s.ruc
lures and engines and IN selecting his servants,
and i liable 10 any OF hts fellow servants Tor ms
negligence 10 this regard. The general RUE oein2
well established that master Is not fesPOhsIoIe
to those In his employ for inJuries resulting from
the negligence, careessness or misconduct OF
fellow servant engaged In the same line Of employ
ment and the same genera ouslncss, 1uo oiiI
ground OF liability IN such cases OF tue emP!oyei
arises from the masters or employers personal
neg gence or such want OF care and prudence IN
selection of agents or appliances, inc Omission
OF which oecasioned or contributed 10 the injury
and which II the proper care had been exercised
BY the employer, would have aVerIed H. IL 10 'ue
duty of the master 10 be careful 10 employ servants
OF sufficient care and skill TO make II probable that
they will not cause injury 70 each DINER oy the
lack OF these qualities.
II servant knows of the incompetency OF fel.
low servant engaged in the same general business
and same line OF mployment and Voluntarily con-
tnues in the same service under the same employ
er, he cannot recover for an injury oocasloneu Dy
the negligence OF such fellow servant II he knew
that his continuance in the employment exposed
him to danger from the negligence or incompetent
cy Of such fellow servant.
The case was given to the jury st Il Is p. inland
at ! O'Clock they had agreed upon verdict. The
court came in at 80 p. m, and the jury rendered
= verdict in favor of the plaintiff for sl57os 49,
The case has been on trial for aye days and was
closely contested al every point.