206 Pa. 621 | Pa. | 1903
Opinion by
Three suits in trespass were brought against the township of Coal, Northumberland county and the Shamokin and Mt. Carmel Electric Railway Company by Isaac Goodman, Andrew Belter and August Czinski and wife respectively, the first two to recover damages for the death of plaintiffs’ wives and the last for injuries sustained by Mrs. Czinski, one of the plaintiffs. In their statements of claim the plaintiffs all declared against
On the evening of October 15, 1899, about dusk, the three women were driving in a buggy on the public road leading from Shamokin to Mt. Carmel and within Coal township. This road is crossed by the tracks of the Shamokin and Mt. Carmel Electric Railway Company. As the buggy containing the women was crossing the tracks of the railway company, it was overturned and its occupants were thrown out into the ditch at the side of the road. Mrs. Goodman was instantly killed, Mrs. Belter was injured so seriously that her death ensued in a few days and Mrs. Czinski suffered severe and permanent injuries. The plaintiffs alleged that the railroad tracks, either from the negligent manner of their construction or from the failure to keep them in proper repair, were dangerous to persons driving across them and that this unsafe condition of the tracks was the cause of the accident.
In their statements the plaintiffs sought to charge the township with negligence because it had failed in its duty to keep the highway in good order and repair and in a condition safe for public travel, and also to charge the railway company with negligence for constructing its tracks across the public highway in a negligent and unsafe manner, thus creating a dangerous impediment and obstruction to public travel. They also charged the township with negligence in permitting the railway company to obstruct the highway and render it unsafe for travel. The statements all concluded with averments that, by reason of the joint carelessness and negligence of the defendants, “ the said township of Coal in not keeping the said public road in good condition and repair and safe for public travel, and in allowing the said obstruction, depression, defects and imperfections to remain therein after due notice thereof, and the said Shamokin and Mt. Carmel Electric Railway Company in erecting, constructing and placing said obstructions, depressions and imperfections in said road and keeping and maintaining the same therein so as to render and keep the said public road dangerous and unsafe for public travel,” the plaintiffs had sustained their injuries.
This case is emphasized as stating the correct rule in the late case of Minnich v. Lancaster, etc., Electric Railway Company, 203 Pa. 632.
There can be no doubt under the above authorities that the torts here complained of, were separate, not joint. Neither under the facts as set forth in the plaintiffs’ statement nor as shown upon the trial was there any concert of action apparent between the township and the railway company. Upon the record as it stood at the time of the trial, and upon the plaintiffs’ evidence, no verdict could have been properly rendered against any one, and the defendants were entitled to binding instructions in their favor. But as pointed out in Rowland v. Philadelphia, 202 Pa. 50, and Minnich v. Lancaster, etc., Electric Railway Company, 203 Pa. 632, the plaintiffs would have had the right, if the question of joint liability of the defendants had been directly raised upon the trial, to amend the statement and proceed against either one of the parties who may have been liable under the proofs adduced, and subject to the defendant’s right to a continuance.
While the judgment must be reversed, it is proper that a new venire should be granted, in order that the plaintiffs may now elect which of the defendants to follow, and that the statement may be amended accordingly.
The judgment in each case is reversed and a venire facias de novo is awarded.