1. Although the refusal at the close of the testimony for the
plaintiff, to direct a verdict for the defendants would justify a
reversal of a judgment against them, yet if they proceed with their
defense and introduce testimony which is not in the record, the
judgment on the verdict which the jury, under proper instructions,
find against them will not be reversed on account of that
refusal.
2. The plaintiff, in the course of his employment as an engine
driver for the defendant, a railroad company, was injured by the
collision of the train on which he was with another train of the
company.
Held that the court did not err in charging the
jury that the company, if its negligence had a share in causing the
injuries of the plaintiff, was liable notwithstanding the
contributory negligence of his fellow servant.
The case is stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
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 stated. 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 106 U. S. 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 be presented in which the
refusal to direct a verdict for the defendant at the close of the
plaintiff's testimony will be good ground for the reversal of a
judgment on a verdict in favor of the plaintiff, if the defendant
rests his case on such testimony and introduces none in his own
behalf; but if he goes on with his defense and puts in testimony of
his own, and the jury, under proper instructions, finds against him
on the whole evidence, the judgment cannot be reversed in the
absence of the defendant's testimony on account of the original
refusal, even though it would not have been wrong to give the
instruction at the time it was asked.
The present case comes within this rule. The evidence introduced
on the part of the company is not in the bill of exceptions, and
the court was not asked to instruct the jury to find for the
defendant on the whole case. Under such circumstances, it must be
presumed in the absence of anything to the contrary that when the
case was closed on both sides, there was enough in the testimony to
make it proper to leave
Page 106 U. S. 702
the issues to be settled by the jury. In this we are not to be
understood as saying that the instruction ought to have been given
when it was asked.
In the instruction which was given we find no error. It was in
effect that if the negligence of the company contributed to -- that
is to say, had a share in producing -- the injury, the company was
liable even though the negligence of a fellow servant of Cummings
was contributory also. If the negligence of the company contributed
to, it must necessarily have been an immediate cause of, the
accident, and it is no defense that another was likewise guilty of
wrong.
Judgment affirmed.