| Miss. | Nov 15, 1904
delivered the opinion of the court.
We cannot perceive that the appellant has any grounds of complaint on account of the failure of the jury to include in the verdict its co-defendant. Assuming that both the railroad company and its employe and co-defendant, the engineer in charge of the engine causing the damage, were equally liable; assuming, further, that they were jointly liable — the right of action which the appellee had was both joint and several, and each defendant was liable for the whole damage. Though equally liable, their liability was based on distinct and different legal principles— the engineer, because of his personal trespass; the railroad company, because of its failure to discharge its non-delegatable duty to the public regarding the custody and management of its dangerous instrumentalities. The appellee could have instituted suit for the entire amount of damage which he had suffered against either of the parties, or against both, as he chose to do. Had the verdict been against both, this would neither have lessened nor increased the liability of appellant for the entire judgment. Nor is the fact that the jury, no matter by what motive actuated, failed to find a verdict against appellant’s co-defendant, in any wise prejudicial to the rights which may exist between appellant and its co-defendant, growing out of the subject-matter of this suit. Conceding the irregularity of the verdict, and that in fact appellee should have recovered against both, this concession conveys an implied acknowledgment of the rightfulness of the verdict against appellant, and justified the affirmance thereof, leaving appellant and appellee to settle the existing equities between them as they shall deem best. Because appellee by reason of the whim or sympathy of the jury, was denied a recovery against both who were liable, is no argument why he should be deprived of that which he did obtain. The question here involved, while new in the instance, is not novel in princi
Affirmed.