111 Mo. App. 315 | Mo. Ct. App. | 1905
The plaintiff sued the appellant and the Missouri Pacific Railway company for damages as the result ofaninjury alleged to have been caused by the negligence of the two companies. There was a verdict and judgment against both. On motion, the verdict and judgment against the latter company was set aside, and the motion of the appellant to set aside the verdict and grant a new trial was overruled. The judgment was appealed from by appellant. There was no dismissal of the action as to the Missouri Pacific RailAvay company.
In the first place, appellant contends that the action was for the joint negligence of both companies and that plaintiff was not entitled to a separate judgment against either; and, furthermore, that if the evidence showed any negligence it Avas the joint negligence of both defendants; therefore, there could be no separate finding. The verdict of the jury Avas as folloAvs: “We, the jury, find the issues for the plaintiff against both defendants, and do assess her damages at two thousand dollars.” The petition alleges: “That while such passenger on said company’s train, through the negligence . . . on the part of both defendants and their servants,” the collision occurred. The evidence clearly indicated that
It was shown that plaintiff was a passenger on a Missouri Pacific train on her way to Kansas City, and that he was injured as a result of a collision of defendant’s trains at or near the crossing of First and Gilliss streets in said named city on the morning of the 25th day of December, 1903. It was shown that as the appellant’s train approached the crossing in question the grade of the track was downward, and although the engineer saw that the arm of the semaphore indicated that he should not cross, he was unable to stop his train before the collision because his air brakes were not not in a condition to be used, as they were not connected. The other company’s train had been signaled to cross and was passing over slowly when it was perceived that appellant’s train would collide with it. Therefore, the engineer stopped his train, as it was safer in a collision at a standstill than while moving, It is practically admitted that the flagman at the crossing, who was in the service of both campantes, was guilty of negligence in giving the signals to the two trains, and that his acts in that respect contributed to bring about the collision.
In the first place, it may be well to state that it is immaterial whether the action against defendants is, or is not, a joint-proceeding. We are inclined to the opinion that it is the former. It has long been the settled law that joint tortfeasors are jointly and severally liable. Addison on Torts (Wood’s edition), sec. 1321; Stanley v. Railway, 114 Mo. 606. It follows, therefore, that'notwithstanding plaintiff sued defendants jointly, she could recover against either upon proper proof.. During any state of the proceedings she could have dismissed as to one defendant and proceeded as to the other. But she succeeded in obtaining judgment against both.
The action of the court in setting aside the finding and judgment as to appellant’s codefendant did not have the effect in any respect of impairing the judgment as it
Had plaintiff dismissed her suit against the Missouri Pacific Railway company the judgment would have been regular, because the appellant’s liability while joint with that of its co defendant was also a several liability. Therefore, it does not come within the rule announced in Holborn v. Naughton, supra, where the liability of one of three defendants did not exist without that of the others. But the case comes within the rule announced in McCord’s Admr. v. McCord, 77 Mo. 166, where a judgment was'rendered against one defendant only, and no disposition of the case was made as to the other defend-1 ants who were not necessary parties to the action. The court reversed and remanded the cause with directions to enter a judgment against defendant McCord and dismiss as to his codefendants. A similar order made in this case would prejudice no right of defendant, as its right of contribution, if any, against its .codefendant would not thereby be impaired.
. For the error noted the cause is reversed with directions to the circuit court to enter up judgment against appellant and dismiss as to its codefendant.