Montgomery Gas-Light Co. v. Montgomery & Eufaula Railway Co.
86 Ala. 372
Ala.
1888
Check Treatment
SOMERVILLE, J.

The rule of the common law was, that in actions ex contractu a discontinuance as to one or more of several defendants, without sufficient legal excuse therefor, operated to discontinue the whole action. — Reynolds v. Simpkins, 67 Ala. 378; Mock v. Walker, 42 Ala. 668. But, in actions ex delicto, the plaintiff could disconi tinue as to one or more defendants, and maintain his action against the remaining defendants, without discontinuing the whole suit. — 5 Amer. & Eng. Encyc. Law, 676; U. S. v. Linn, 1 How. (U. S. 104; Weakley v. Rogers, 3 Watts (Pa.), 460. This could be done, even after verdict, though all the defendants had joined in the same plea, and been found guilty of the same tort; the plaintiff being permitted to enter a nolle prosequi as to some of them, and take judgment against the rest. — Hardy v. Thomas, 23 Miss. 544; s. c., 57 Amer. Dec. 152; Salmon v. Smith, 1 Saund. 207. Section 2607 of our present Code (Code, 1876, § 2911), which authorizes a discontinuance to be entered as to parties defendant who are not served, was not intended, nor does it operate, to change this common-law rule applicable to action ex delicto. A plaintiff may still bring his action against several tort-feasors, and dismiss as to one or more, whether served with process or not, and proceed to judgment against the remaining defendant, without discontinuing his entire action. — Slade v. Street, 77 Ala. 576.

The dismissal of the present suit, which is one in case, or ex delicto, against the defendants, Chambers & Abercrombie, did not operate to discontinue the action against the other defendant, the Montgomery Gas-Light Company; and there was no error in overruling the motion of appellant to dismiss the entire action,

*380The principles settled in this case when last before us on appeal are, in our judgment, conclusive as to the correctness of the action of the Circuit Court in overruling the demurrers to both the original and the amended complaint. Montgomery & Eufaula Railway Co. v. Chambers & Abercrombie, 79 Ala. 338. We then decided, that contributory negligence is a defense, the burden of proving which rests on the defendant, and that it is unnecessary for the plaintiff, in the first instance, to negative fault or neglect, or the want of ordinary care, on his own part. — 3 Brick. Dig. 672, § 25, et seq., and cases cited.

The original complaint certainly contained averments of fact showing a substantial cause of action. It alleges, in substance, that the defendant, being lawfully in possession of the plaintiff’s side-track, wrongfully and negligently placed a freight car so near the main track of the plaintiff’s road, that a train of cars, operated by plaintiff’s servants, ran into and was driven against said obstruction on the side-track, from the effects of which four of said cars were broken to pieces, and damaged to the extent of two thousand dollars. This was a wrongful act, or tort on the part of the defendants, constituting a violation of a legal duty, and resulting directly in pecuniary injury to the plaintiff; and hence the act complained of embraced all that was necessary to constitute a legal cause of action. It was entirely immaterial that it was plaintiff’s right and duty, as to third persons, to have removed the obstruction which caused the injury. The plaintiff’s liability to third persons, whether passengers or employees, can not relieve the defendants of their liability to the plaintiff for any injury resulting from their negligence, or other wrongful conduct.

There was no error in overruling the demurrer to the complaint, either original or as amended.

We held on the former appeal, that the second plea of the defendant was defective, and that the demurrer to it should have been sustained. This plea avers several cumulative acts of alleged negligence on the part of the plaintiff, which are averred to have contributed to the injury sustained by the collision of the plaintiff’s train with the car left standing on the side-track. These are, (1) backing their train at a rate of speed faster than that allowed by a city ordinance, which rate was four miles per hour; (2) failure to make provision for giving signals to the engineer, so as to warn him of danger while backing the train; (3) the construction *381of the side-track, in an unskillful and improper manner. The defect in the plea, pointed out by demurrer, was, that it failed to aver that the alleged acts of contributory negligence were the proximate cause of the damage suffered, or, in other words, that they proximately contributed to the injury complained of. The amendment to the plea, which now appears in the record, obviated the grounds of objection specified in the demurrer, and the court consequently erred in sustaining the demurrer. The question of negligence vel non should, under the averments of the complaint, have been submitted to the jury as one of fact, under proper instructions from tbe court as to tbe law.

Contributory negligence is commonly defined as “a want of ordinary care upon tbe part of tbe person injured by tbe actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.” — 4 Amer. & Eng. Encyc. Law, 17; 3 Brick. Dig. 672, § 25 et seq., and cases cited; S. & N. R. R. Co. v. Schaufler, 75 Ala. 136. It is objected, that the Circuit Court, in defining the phrase contributory negligence, embraced in it the idea, that it must have been of a character to have “essentially contributed” to the injury set out in the complaint. The rule is so stated in Government St. R. R. Co. v. Hanlon, 53 Ala. 70, and, in our judgment, is not incorrect. It is often said, that no negligence on the part of the plaintiff, which “remotely contributes” to produce an injury, will debar him from a recovery; and it is variously stated, that no negligence is contributory and proximate, in the order of cause and effect, unless it “substantially,” or “essentially,” or “directly” contributes to produce such injury, or is “an efficient cause,” or “active and efficient” cause in producing it. These terms of description are often used indifferently to distinguish the direct and immediate or juridical cause of the injury, from a remote cause or mere condition of such injury, and they can not be said to be either erroneous or misleading. — 4 Amer. & Eng. Encyc. Law, pp. 23, 25, 26, 27, 42, 51; 2 Wood’s Railway Law, Note, p. 1066; Beach on Contrib. Neg. § 10, and pp. 27-28, 32.

If the defendant employed Chambers & Abercrombie to unload the cars on the side-track, or switch, it is plain that any act of negligence on their part, or on the part of their employees, in the performance of this duty, would be *382imputable to the defendant, on account of the relation of master and servant existing between them, although the defendant corporation had no immediate control over .such employees, while engaged in the duty of unloading. Chambers & Abercrombie were in no sense independent contractors, but were agents of the defendant, the Gas-Light Company, which iiself had impliedly assumed the duty of so using the track as to keep it clear of obstructions. The law, under the terms of the contract for using the side-track, thus devolved on the defendant the duty of keeping it in safe condition; and this duty could not be cast on another, so as to escape liability properly attaching to its non-performance. City of Birmingham v. McCrary, 84 Ala. 469.

There was, under the above principles, no error in giving the several charges requested by the plaintiff.

It was no answer to the maintenance of the present action, that the cars alleged to have been injured belonged to the Louisville & Nashville Railroad Company. The plaintiff had them in possession as bailee for hire, and owned such a special property in the cars as to authorize an action in its name against a third person, for negligently or tortiously injuring them. Such bailee may maintain an action on the case for an injury to the bailed property, as well as an action of trespass, trover or detinue against a wrongdoer, in a proper case. The charge numbered 10, requested by the defendant, was properly refused. — Orser v. Storms, 18 Amer. Dec. 548-550; Hare v. Fuller, 7 Ala. 717; McGill v. Monette, 37 Ala. 49; Brewster v. Warner, 136 Mass. 51; s. c., 49 Amer. Rep. 5; 2 Amer. & Eng. Encyc. Law, 6.1.

There was no error in refusing the general affirmative charge requested in behalf of the defendant, under the rules heretofore frequently announced by us. — City of Birmingham v. McCrary, 84 Ala. 469; Eureka Co. v. Bass, 81 Ala. 200; s. c., 60 Amer. Rep. 152.

Reversed and remanded.

Clopton, J., not sitting.