Grand Trunk Ry Co of Canada v. Cummings

• Court: U.S. Supreme Court
• Writing for the Court: WAITE
• Citation: Grand Trunk Ry Co of Canada v. Cummings, 106 U.S. 700, 1 S.Ct. 493, 27 L.Ed. 266 (1883)
• Decision Date: 08 January 1883
• Parties: GRAND TRUNK RY. CO. OF CANADA v. CUMMINGS

106 U.S. 700

1 S.Ct. 493

27 L.Ed. 266

GRAND TRUNK RY. CO. OF CANADA v. CUMMINGS.

January 8, 1883.

John Rand, for plaintiff in error.

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

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 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 testi- mony 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...