262 Pa. 242 | Pa. | 1918
Opinion by
Walter Azinger and his wife were injured by a collision with defendant’s train at a grade crossing when an automobile in which they were riding, and driven by the husband, was struck by one of defendant’s freight trains. Two actions were brought, one by the husband
The first assignment of error complains of the action of the trial judge in directing the cases to be tried together. An order to that effect was made, following notice to plaintiff’s attorney and, after argument, recited, “It appearing that no prejudice will result to the plaintiffs and that it is reasonable to consolidate” the two actions for trial before the same jury “it is therefore ordered and decreed that the said motion be and the same hereby is granted and the said cases are directed to be tried together, separate verdicts to be rendered in accordance with the practice in such cases established.” The court’s action was not such a consolidation of the two proceedings as to merge the two actions into one, but merely an order directing they be tried together in view of the fact that the cases were of the same nature, arose out of the same transaction and depended in each case upon substantially the same proofs, and was made in the interest of justice and for the purpose of avoiding unnecessary delay and expense.
A reference to the distinction between consolidation of two or more actions and ordering them tried together, is sufficient to show the action of the court was proper. The term “consolidation” is used in three different senses: first, where all except one of several actions are stayed until one is tried, in which case the judgment in the one is conclusive as to the others; second, where several actions are combined into one and lose their separate identity and become a single action in which a single judgment is rendered; and, third, where several actions are ordered to be tried together but each retains its separate character and requires the entry of a sepa
The subject was fully discussed and numerous authorities cited by the Supreme Court of Massachusetts in Lumainsky v. Tessier, supra, where two actions at law were pending between a tenant and his landlord for damages for breach of covenant in the lease, and, subsequently, a proceeding in equity was begun to enjoin the landlord from collecting rent until the covenants in the lease should be performed. The court in the equity proceeding ordered the two actions at law to “be consolidated with this proceeding, and damages assessed herein, should any be found due, and that said two actions at law be heard with this suit at a session of the court without juries.” Though the parties were the same the court held this was not a consolidation of the cases into one proceeding so as to merge the suits at law into the equity proceeding and separate judgments were properly entered: in other words, the effect of the order was merely to require the cases to be tried together. It was said (page 188) : “Where several causes are pending between the same or different parties which grow out of a single transaction
' The question is one that must necessarily be left to the discretion of the trial judge and where the issues are the same and they arise out of the same transaction, and it does not appear the trial of the cases together would tend to place the objecting party at a disadvantage, or give an undue advantage to his adversary, the action of the court in ordering the cases tried together will not be reversed: Benge’s Adm. v. Fouts, 163 Ky. 796; Lumainsky v. Tessier, supra; Bradford v. Boston & Maine R. R., 225 Mass. 129; Realty Const. & Mortg. Co. v. Superior Court of San Joaquin Co., 165 Cal. 543; Reid v. Nichols, 166 Ky. 423. In Burke v. Hodge, 211 Mass. 156, six different actions by employees against their employer and a firm of independent contractors to recover for injuries sustained by plaintiffs by reason of the falling of a wall, were directed to be tried together and that order sustained on appeal.
The order in the present case was not a consolidation of the actions, strictly speaking, but merely an order directing they be tried together and expressly stipulating that separate verdicts be rendered. No abuse of discretion being shown the first assignment of error is overruled.
The remaining assignments question the correctness of parts of the charge in submitting the case to the jury and the answers to points. The uncontradicted testimony of plaintiff and her husband is to the effect they had not previously driven over the road, were unfamiliar with the locality and were not aware of the existence of the railroad crossing. They also testified the
For the reasons stated the third, fourth and fifth assignments of error are sustained, the judgment reversed and a new trial granted.