Oxford Democrat. [volume] (Paris, Me.) 1833-1933, 1878-10-01
From the Portland Daily Press sept. q.
Cummings Us. Grand Trunk
R0it'C0y.
Anew Trial ordered by the oarcu,, Court.

A New Trial ordered by the Curcuit Court.
In the United States Circuit Court Sat-
urdsy morning Judge Clifford delivered
the opinion of the court in the case of
Oliver = Cummings vs.. the Grand Trunk
Railway, on 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
tho trial. The motion alleges that the
verdict for $4,000 was against the law
aud evidence. The injuries alleged we're
sustained by the plaintiff March e, 1878,
near Yarmouth Junction, by collision
which occurred there on the morning of
that day between the locomotive of train
bound to Portland and special engine
and tender bound from Yarmouth to Cor
ham. The plaintiff was an engine driver
of the passenger train which left Lewiston
that morning. The special engine and
tender were in 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 return
with the same to Gorham. Noycs took
the special engine and tender, in order to
return as directed; and it appears that he
neglected to obtain clearance order or q
special crossing order, aud that he left the
station without any such order and with
out right or authority; that he stopped at
Yarmouth Junction long enough to allow
the signal man to drop the signal, and,
through forgetfulncss 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 inju-
ries described in the declaration. BY the
seventh rule Of the company, it is provid-
ed that no driver Of a special engine shall
leave Geographic station, where the
engine has been stopped, without first OBJ
tanning clearance order or special
crossing order, properly signed by .4c OPP
orator on duty. Beyond all doubt, Noyes
had copy Of that rule in hi, possession,
and it is equally clear that he w's nc
quainted with it, and with the time ,,hles
regulating the running of the trains, and
that he neglected TO comply wi,h those
rules, the truth being that no forgot that
the train in charge of the plaintiff was
coming down, and was entitled to the
right Of way. Yarmouth was, and Var
mouth Junction was not, telegraph
station, as appears in the evidence taken
at the trial, 1t il clear that if the rules
Of the company in the possession Of the
driver Of the special engine had been OBJ
served by him, the collision would not
have taken place, and that the injuries
received by the plaintiff were caused by
the neglect aud failure OF the engine dri-
yer, IN charge OF the special engine, TO
comply with those rules and regulations.
Authorities of great weight support the
theory that the master is not liable TO his
servant for injuries which were occasioncd
by the negligence of felIow-servant in
the same service. The circuit Judge who
presided at the trial fully adopted that
view of the law, and neither party except
ed to any Of the instructions which he
gave 20 the jury.
Ordinary care in providing machinery
and in the selection OF servants, it is ad.
mitted, is devolved upon an employer, and
the plaintiff contends that the defendants
failed to comply with that obligation in
several respects
l. That the engine driver Of the special
engine and tender was incompetent to per-
form the duties required Of such an en-
ployee.
2. That it was negligence in the com
pany TO despatch the special engine and
tender over the road without a conductor,
in addition to the engine driver and fire
man.
). That it was negligence IN the COM
pany to run the special engine and tender
over their road without first establishing
telegraph station at Yarmouth Junction.
The court after considerable discussion
of the three charges. both judges concur
ring, fail to find that the defendants omit
ted in any respect to use due and ordinary
care in providing proper apparatus or
machinery for the use of their servants
In running the special engine and tender,
or that they were faulty in any respect in
tie selection of their servants in charge
of the said special engine and tender, or
that the plaintiff in view Of the whole
evidence had any just or legal ground to
claim compensation Of the defendants for
the injuries he received by the said COLI
sion. Instead of that, the court feel it TO
be their duty TO say that unless the evil
dence presented the claim of the plaintiff
in more favorable light when he first
rested than when both parties closed, the
court might well have directed verdict
for the defendants without hearing further
evidence.
The verdict is accordingly set aside and
a new trial ordered.
n, ni,T,b IVnsI-