The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1878-09-23
CUMMINGS VS.. GRAND TRUNK
RAILWAY.
A New Trial Ordered by the Circuit
Court.

In the United States Circuit Court Saturday
morning Judge Clifford delivered the opinion
| of the court in the case of Oliver P. Cummings
vs.. the Grand Trunk Railway, on a motion to
set aside the verdict against the defendants
and order new trial. The motion was filed
before the late Judge Shepley, who presided at
the trial. The motion alleges that the verdict
for $4,000 damages was against the law and
evidence The injuries alleged were sustained
by the plaintiff March 6, 1876 near Yarmouth
junction, by collision which occurred there on
the morning of that day between the locomo-
tive of train bound to Portland and a special
engine and tender bound from Yarmouth to
Gorham. The plaintiff was an engine driver
of the passenger train which left Lewiston
that morning. The special engine aud tender
were 10 charge of Charles d. Noyes, who left
Gorham that morning and came down as far as
Yarmouth, where he received orders to leave
the train in his charge and to take charge of
the said special engine and tender, and to re-
turn with the same to Gorham. Noyes took
the special engine an tender, in order to return
as directed; and it appears that he neglected
to obtain clears nee order or special crossing
order, and that he left the station without any
such order, and without right or authority;
that he stopped at Yarmouth Junction long
enough to allow the signal man to drop the
signal, and, through forgetfulness that the
train in charge of the plaintiff had the right of
way, proceeded to the next station, and in
few minutes the collision took place which
caused the plaintiff the great injuries described
in the declaration. By the seventh rule of the
company, it is provided that no driver of a
special engine shall leave telegraphc station,
when the engine has been stopped, without
first obtaining clearance order or a special
crossing order, properly signed by the operator
on duty. Beyond all doubt, Noyes had copy
of that rule in his possession, and it is equally
clear that he was acquainted with it, and with
the time tables regulating the running of the
trains, and that he neglected TO comply with
those rules, the truth being that he forgot that
the train IN charge of the plaintiff was coming
down, and was entitled to the right of way
Yarmouth was, and Yarmouth junction was
not, telegraph station as appears in the evil
dence taken at the trial. 1t is clear that if the
rules of the company in the possession of the
driver of the special engine had been observed
by him, the collision would not have taken
place. and that the injuries received by the
plaintiff were caused by the neglect and failure
of the engine driver, in charge of the special
engine, to comply with those rules and regala-
tions.
Authorities OF great weight support the the
DRY that the master is not liable to his servant
for injuries which were occasioned by the
negligence of fellow-servant in the same SER
vice. The circuit jadge who presided at the
trial fully adopted that view of the law, and
neither party excepted to any of the instruc-
tons which he gave to the jury.
Ordinary care 10 providing machinery and |
in the selection of servants, it is admitted, is
devolved uponan employer, and the plaintiff |
contends that the defendants failed to comply
with that obligation In several respects:
1. That the engine driver of the special en- |
CINE and tender was Incompetent to perform
the duties required OF such an employee.
2. That it was negligence in the Company to |
despatch the special engine and tender over |
the road without conductor, in addition to the |
engine driver and fireman.
3. That it was negligence in the company to |
run the special engine and tender over their |
road without first establishing a telegraph |
station at Yarmouth junction.
The court after considerable discussion of |
the three charges, both judges concurring, fail |
to find that the defendants omitted in any re- |
spect to use due and ordinary care in providing |
proper apparatus or machinery for the use of |
their servants in RAINING the special engine |
and tender, or that they were faulty IN any |
respect in the selection Of their servants 10 |
charge of the said special engine and TENDER |
or that the plaintiff in view of the whole evil
IoJ
of the defendants for the injuries |
he received by the said collision Instead of |
that, the court feel it to be their duty to say |
that unless the evidence presented the claim of |
the plaintiff in more favorable light when he |
first rested than when both parties closed, the |
court might we'll have directed verdict for |
the defendants without hearing further evil |
dence.
The verdict is accordingly set aside and a new
trial ordered.