106 U.S. 700 (1883), Grand Trunk Ry. Co. v. Cummings

• Citation: 106 U.S. 700, 1 S.Ct. 493, 27 L.Ed. 266
• Party Name: GRAND TRUNK RY. CO. OF CANADA v. CUMMINGS.
• Case Date: January 08, 1883
• Court: United States Supreme Court

Page 700

106 U.S. 700 (1883)

1 S.Ct. 493, 27 L.Ed. 266

GRAND TRUNK RY. CO. OF CANADA

v.

CUMMINGS.

United States Supreme Court.

January 8, 1883

COUNSEL

[1 S.Ct. 493] John Rand, for plaintiff in error.

A. A. Strout and Geo. F. Holmes, for defendant in error.

OPINION

WAITE, C. J.

This was a suit brought by Cummings, the plaintiff in error, an engineman in the employ of the Grand Trunk Railway Company of Canada, to recover damages for an injury sustained in the course of his employment by a collision of a train, on which he was, with another train of the same company. The claim of Cummings is that the collision was caused by the fault and neglect of the company; that of the company, that it was caused by the negligence and disobedience of a fellow-servant of Cummings. This was the issue at the trial, and at the close of the testimony on the part of Cummings the company asked the court to instruct the jury to return a [1 S.Ct. 494] verdict in its favor, which being refused, an exception was taten. All the testimony before the jury when this instruction was asked has been put into the bill of exceptions. The company then introduced testimony touching the points covered by that on the part of Cummings. None of this testimony

Page 701

is in the record. The company did not contend that Cummings was guilty of contributory negligence.

At the close of the case on both sides the court gave to the jury sundry instructions, not excepted to, and then, at the request of Cummings, instructed them further, 'that if Noyes [the person claimed to be a co-servant] was negligent, and if the company was also wanting in ordinary care and prudence in discharging their duties, and such want of ordinary care contributed to produce the injury, and the plaintiff did not know of such want of ordinary care and prudence, the defendant would be liable; that if two of those causes contributed, the company would be liable; that the mere negligence of Noyes of itself does not exonerate them, if one of their own faults contributes.' To this an exception was taken. The jury returned a verdict for Cummings, upon which a judgment was rendered against the company. To reverse that judgment this writ of error was brought, and the only errors assigned are (1) the refusal to direct a verdict for the company at the close of Cummings' testimony; and (2) the giving of the instruction which was excepted to.

It is undoubtedly true that a case may...