20 N.Y.S. 28 | N.Y. Sup. Ct. | 1892
This is an appeal from an order denying defendant’s motion to cancel the judgment entered in this action. The plaintiff, an engineer on the Central New England, etc., Railroad, was injured by a collision oecuring on its road with an engine of the defendant company, which the first-named company had allowed to enter upon its tracks to obtain water. The recovery in this action was based upon the negligence of the defendant’s engineer in failing to “flag” his engine. Subsequently the plaintiff brought an action against his employer, the New England, etc., Company, and recovered on the claim that that company was negligent in permitting the engine of the other road to run upon its tracks at the particular time. The New England, etc., Company settled with the plaintiff, and took from him a release, and also an assignment of the judgment against the defendant. We think the motion should have been granted. Though the negligence of the two companies consisted of wholly distinct acts, still the injury and tort which constituted the plaintiff’s cause of action was single. He could not have recovered part of his damages from one company, and part from the other, because the whole injury proceeded from the combined negligence of both, not part from the negligence of each. It was therefore a clear case of a joint tort, and a satisfaction by one tortfeasor discharged the plaintiff’s claim against the other. Woods v. Pangburn, 75 N. Y. 495; Webster v. Railroad Co., 38 N. Y. 260; Barrett v. Railroad Co., 45 N. Y. 628.
It is claimed by the assignee of the judgment that, as between it and the defendant, it was the negligence of the latter that caused the injury, for the condition of the permit “to flag” the engine was not complied with; and that hence it is not precluded from recovering indemnity or contribution from its co-tort feasor. This may well be, but has no effect on this application. On this motion the Central New England, etc., Company has but the same rights as its assignor, the plaintiff. As the plaintiff could not collect anything from the defendant after satisfaction by the other company, his assigns cannot. It is not possible upon this application to determine the liabilities of the two companies between themselves. It may be that the defendant, by accepting the permission, impliedly covenanted to use the privilege properly and with care, and must indemnify the New England Company for any loss resulting from default in these respects. But to enforce such liability an action must be brought. The defendant is entitled to a trial of that issue. The issue was not and could not have been determined in either of the actions brought by the plaintiff against the two companies. The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.
