218 Mass. 84 | Mass. | 1914
The agreement between these parties substantially provided in the first place that when cars of the defendant were operated upon the plaintiff’s tracks in charge of the plaintiff’s servants, the plaintiff should be ultimately liable for all damage
The accident in question was due to two causes acting together: the excessive speed of the car due to the negligence of the plaintiff’s servants; and the defective condition of the axle of the defendant’s car, which condition was due to the negligence of the defendant. That is, the accident was due to the combined effect of the negligence of both parties, and cannot be attributed to the negligence of either one of them alone.
Under these circumstances, we think it plain that upon that part of the agreement which we have stated the action cannot be maintained. The case is not covered by that clause of the agreement, giving to it its broadest construction against the defendant; for at most it dealt only with accidents which were due to the fault of one party rather than of the other. Nor can there be a recovery in tort; for where, as here, both of the parties are at fault, the loss must rest where it has fallen. Churchill v. Holt, 131 Mass. 67, 69. The plaintiff has contended indeed that the, excessive speed of the car was not the proximate cause of the accident, but merely a condition which contributed to it, and but for whose existence it perhaps would not have happened. Snow v. New York, New Haven, & Hartford, Railroad, 185 Mass 321. Gibson v. International Trust Co. 186 Mass. 454. Bellino v. Columbus Construction Co. 188 Mass. 430, 433. Stone v. Boston & Albany Railroad, 171 Mass. 536. But the judge found, with manifest reason, that the excessive speed was one of the proximate causes of the accident; that the accident was directly due to the negligence of both parties as its proximate causes. That finding we cannot revise.
But the agreement contained further provisions. There was a stipulation that at the trial of an action brought against either of
The suits and claims against the plaintiff growing out of this accident were settled, not by trials, but by adjustments made between this plaintiff and the respective parties who made those claims. The first action was indeed tried in court, and Mr. Colt was selected1 by the parties and attended the trial. A verdict therein was rendered against this plaintiff, but the judge set it aside and ordered a new trial. Thereupon this plaintiff made a settlement of all the suits and claims pending against it by reason of this accident, but upon terms approved by this defendant. This defendant then refused to proceed before Mr. Colt as an arbitrator under the stipulations above quoted, and the plaintiff brought this action.
The agreement between these parties as to the adjustment between themselves of actions brought against either party by reason of accidents which were the joint result of the negligence of both of them is that the arbitrator appointed to attend the trial of such
The result is that the plaintiff cannot maintain its actions. We do not need to discuss the specific rulings made by the judge at the trial. We find no error in any of them. Judgment must be entered for the defendant on the finding in its favor.
So ordered.