The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1878-05-07
o. 8. Circuit Court.

action by the plaintiff who resides in Paris Me- fol
| injuries received by him on the morning of March
6th 1876 while in the employ of the company as IN
| engineer upon the morning train coming from Lew
iston to Portland. The plaintiff introduced testi-
mony to prove that he had been in the employ OF
this company for about % years; that ON the day
when he received the injury he started from Lewis
ton as engineer OF the passenger express train at 725
a. M; that at Pownal he passed the up passenger
train carrying white flag indicating that special
train to follow at some time during the day and
that such special train to keep out of the way
all other trains, so that the train upon which the
plaintiff was riding had the right of way. The tes-
timony showed that he proceeded without Interrupt
ton until he reached place about three-quarers Of
mile from Yarmouth Junction when suddenly
without warning, he saw approaching through the
dense fog which, upon the morning in question:
cealed everything from his view, an engine and ten
der running at the rate of abuut 20 miles an hour
Seeing that collision was inevitable Mr.. Cummings
sounded the whistle for the brakes and reversed his
engine and attempted to leap from it, but was too
late. The time that was occupied in dischargng his
duty to those whose lives under his charge pre-
vented his taking any means for his own safety.
The two engines came together and Cummings was
thrown distance of fifteen feet and was taken up
insensible, With his ribs broken, his leg fractured
injuries about the lower part of his spine and
serious injury to his shoulder No other person on
his engine was injured excepting Mr.. Whitehouse,
who received such severe injuries that he died the
same day. The testimony showed that the coilding
engine started from Portland following the up pas
senger train which left Portland about a. m. and
was "running Wild, it being its duty to keep out of
the way of all regular passenger TRAINS This engine
was in charge of Chas. d. Moves, who had been a
fireman on the road for some time, and for few
weeks in charge Of the passenger train running from
Gorham to Portland in the absence of Mr.. Walker,
the regular engineer of the train. On the morning in
question the engine run from Portland to Yarmouth
in charge of A. jackson, who desired to return to
Portland and at Yarmouth the change was made,
jackson taking the passenger train upon which Noyes
was running and Noyes taking the "wild' engine
which had previously been in charge of jackson. The
rules OF the company require that Noyes should OBJ
tanned a crossing order'' at Yarmouth but instead
of doing this, having only fireman on the engine
beside himself he signaled the switchman and pro-
ceeded until the collision occurred.
1t was claimed by the defence that the collision was
caused solely by the fault and negligence of Noyes
whom the company alleged to be competent for
the duty he was called upon to discharge. 1t was
claimed on the part Of the plaintiff that Noyes was
inexperienced and incompetent for the situation in
which he was placed; that he had but little expert
ence as engineer and then under the guidance of
competent conductors and brakemen on freight and
passenger trains That the duty he was called upon
to discharge in running the 'wid' engine, not only
involved the running OF the engine, but also the du-
ties Of conductor in obtaining clearance orders,
making crossings and doing other acts which, by the
rules OF the road, a conductor was ordinarily re-
CURED to perform and that for these duties he had
TIL.
also claimed that the company was in fault in send
ing out an engine and tender under the circumstan-
ces without third person to act as conductor and
this practice was fraught with danger both to its
employees and the general public.
1t was admitted that at the time Of the injury the
plaintiff was not in fault. The testimony showed
without contradiction that the injuries to the plain
tiff was Of the most serious and aggravated nature,
making him cripple for life and depriving him of the
power to labor for his own substance and the sup
port OF his family.
The testimony also disclosed that Mr. Cummings
delicious for go days after the injury and that
his life despaired of, and that he suffered ex-
IRENE pain from his broken bones and wounds upon
his back, which separated and the flesh soughed off
SO that the bones beneath were exposed.
At the commencement of the trial counsel for the
moved to dismiss the case for want of
jurisdiction, but the motion was overruled. His
Honor Judge Shepley, in a very able and lucid
charge, occupying about one hour and half, laid
down the rules of law which should govern the jury
in their examination Of the case and defined to them
the questions Of fact upon which they were to pass,
The following the chief law points made by the
Judge:
A workman or servant on entering into an employ
ment by implication agrees that he will undertake
the ordinary risks incident to the service in which he
is to be engaged, among which is the negligence Of
other servants employed in similar services by the
same master. On the other hand the master or en-
ployer implicitly contracts that he will use due care
in engaging the services of those who reasonably
1T and competent Tor the performance OF their re-
1ue precaution to adopt and use such machinery,
apparatus, tools appliances and means are suia-
BILE and proper for the prosecution OF the business in
which his servants are engaged with a reasonable
legree OF safety and security against injury work.
nan or servant on entering upon any employment is
supposed to know and assume the risks naturally |
Incident thereto if he is to work in conjunction with
,thers he must know that the careessness or neg-
of one of his fellow servants may be productive
Of injury to himself. He knows that no amount of
care and diligence by his master employer can by
BY his fellow servants, although they may have been
fit for the service in which they are en-
gagged. 1t is just and reasonable that consequences
which the servant must have foreseen on entering
into employment, and which due on the part
Of the master or employer could in no way prevent,
should not be visited on the employer Ii is well SET
tled both in England and America, that master Is
bound to use ordinary care in providing his structures
and engines and in selecting his servants, and is
liable to any OF his fellow servants for his negligence
In this regard. The general rule being we'll estab-
shed that master is not responsible to those in his
employ for injuries resulting from the negligence
carelessness or misconduct Of fellow servant en-
gagged In the same line of employment and the same
general business the only ground of liability in such
of the employer arises from the masters or en-
poyers personal negligence or such want Of care and
prudence in the management of his its affairs or
the selection OF agents or appliances the omission of
ifyIfod fOf
which, if the proper care had been exercised BY the
employer, would have averted it. 1t is the duty OF
cient care and skill to make It probable that they
will not cause injury to each other by the lack Of
these qualities.
1t servant knows of the incompetency of fellow
servant engaged in the same general business and
same line OF employment and voluntarily continues
in the same service under the same employer. he can
not recover for an injury Occasi0ned by the negi-
gence of such fellow servant if he knew that his con-
linuance in the employment exposed him to danger
from the negligence or incompetency of such fellow
servant.
The case was given to the jury at 1915 p M, and
1t o'clock they had agreed upon vereict. The
court came in at 1.30 p m. and the jury rendered
verdict in favor of the plaintiff for $15,7Os.33
The case has been on trial for five days and was
vigorously contested at every point.
The case was opened for the plaintiff by Hon. S. c.
Andrews and the closing argument was made by A.
Strout Esq. it being of his abest efforts
John Rand, ESD, defended the case with much abil-
ity.
The defendants filed petition for new taial.
BEFORE JUDGE FOX.
United States by indictment vs.. Adelbert Chand-
Ter of Unity, for utterng counterfeit half and quar-
ter dollars. On trial.
Wilbur F. Lunt, Dist. Atty for U. 8.
Drummond & Winship-John Varney for diff.