Pugh v. Chesapeake & Ohio Railway Company. CASE 12-PETITION ORDINARY-MARCH 13. Pugh v. Chesapeake & Ohio Railway Company. APPEAL FROM LEWIS CIRCUIT COURT. 1. WRONG DOERS-JOINT LIABILITY FOR TORT.-For an injury inflicted by two or more wrong doers an action may be maintained by the injured party against any one or all of them, the liability of the wrong doers being joint and several; and the injured party has a right to elect and proceed against any one or all of them. 2. SAME. While several persons may be guilty of several and distinct negligent acts, yet if their concurrent effect is to produce an actionable injury, they are jointly and severally liable therefor, the purpose of the action being not to recover for the negligent act or acts, but to recover damages for the injury which they produce. 3. SAME COMPENSATION FOR INJURY.—If an injury is produced not by design, but by the concurrent acts of negligence of two or more persons, although their acts were separate and distinct still they incur a joint and separate liability for the injury which they produced; but if the injured person sues one of them and receives satisfaction for the injury, he can not recover from the other wrong doers, as he is only entitled to be once compensated for the injury. 4.. SAME. While one person is not generally liable for the negligent acts of another, yet when he is guilty of negligent acts, which together with the negligent acts of others, produce an injury, then he becomes jointly and severally liable for the injury so produced. 5. RAILROADS-JOINT LIABILITY OF THE COMPANY AND ITS SERVANTS. In an action against a railroad company and the conductor, engineer and fireman in charge of the train which injured the plaintiff, where it is charged that the injury was inflicted by "the wanton and gross negligence of all the defendants in operating the locomotive engine and cars, and leaving the locomotive engine of said train in charge and control of the fireman of said crew, and permitting said locomotive engine to be operated by said fireman, and in not having the cars of said train supplied with any apparatus or means to enable plaintiff to get on said cars, and in having the cars of said train unsafely, insecurely and defectively equipped plaintiff was thereby thrown under the cars of said train and 1 Pugh v. Chesapeake & Ohio Railway Company. run over," there is but one cause of action alleged, and it was error to strike out that part of the petition alleging that the cars were not supplied with the necessary apparatus. WILLIAM GOEBEL FOR APPELLANT. 1. It is not only the right but the duty of the plaintiff to aver in his petition, stating a single cause of action, every ground for recovery that he has. This necessarily results from the rule, that if the plaintiff in suing upon a cause of action, omits to rely upon any ground of liability, and a trial is had upon the merits, he is barred in another action from asserting the ground so omitted. In this case there were two grounds for liability set out in the petition, viz. (1.) that the company negligently failed to have the cars, which appellant was, in performance of his duty, compelled to mount, sufficiently and safely equipped, (2.) negligence upon the part of the conductor, engineer and fireman in performance of their duties, and the injury is alleged to have resulted from all the negligent acts and omissions set out in the petition. Under such circumstances, the motion to elect was improperly sustained. Greer v. L. & N. R. R., 94 Ky., 169; Brown v. Cox Brothers & Co., 75 Federal Rept., 689; Martin's Administrator v. L. & N. R. R., 16 Ky. Law Rept., 150. 2. The motion for a peremptory instruction was improperly sustained. The evidence discloses that the appellant was acting under orders of the conductor, and that the conductor and engineer had both left the train while it was switching, in the charge of the fireman; that there was no stirrup or hold on the car which appellant attempted to mount; there was a sudden increase in the speed of the train, by which his hold on the railing was broken, and he was thrown under the cars, and the injury resulted. Under such circumstances the peremptory instruction should not have been given. L. & N. R. R. v. Mitchell, 87 Ky., 336; L. & N. R. R. v. Hurst's Administrator, 14 Ky. Law Rept., 633; Greer v. L. & N. R. R., 94 Ky., 169; Kansas City &c. R. R. Co. v. Murray, 40 Pac. Rept., 646; Strong v. Iowa Cen. Ry. Co., 62 S. W. Rept., 799. 3. When a fireman has charge of a train as engineer the company is responsible for his conduct, just as it would be for the conduct of the engineer himself. L. & N. R. R. v. Moore, 83 Ky., 675; L. & N. R. R. v. Hurt's Adm'r., 14 Ky. Law. Rept., 633. Pugh v. Chesapeake & Ohio Railway Company. W. H. HOLT ON SAME SIDE. 1. The plaintiff may state as many grounds of complaint constituting the negligence producing the injury, as he may have. They are not different causes of action for injury; the injury may have been produced jointly by the unsafe condition of the alleged insufficient and improper equipment, and the negligence of the train officials; and these things may have concurred in producing the injury. Greer v. L. & N. R. R., 14 Ky. Law Rept., 876. 2. The gross neglect of those in charge of the train in being absent from their posts of duty; their failure to see and observe the signals properly given by appellant to slow up; the putting on of steam, when it was not only unnecessary, but when it should have been known that it put the brakeman in danger, show such gross neglect as presents a case, which should have been submitted to the jury. WADSWORTH AND COCHRAN FOR APPELLEES. 1. It was expressly alleged in the petition, that the negligence, on account of which the action was brought, was the joint negligence of all the appellees, and it was on this account that the joint negligence was sought to be maintained; it was, therefore, improper to allege in the petition acts of negligence on part of any of the appellees of which any of the other appellees were not guilty, and for which they were not responsible. As to the matter of equipment the cause of action was stated only against the appellee company, and that part of the petition was properly stricken out. It is not alleged that it was the duty of the conductor, engineer, or fireman to remedy the defective equipment. L. P. Canal Co. v. Murphy, 9 Bush, 522; Furgeson v. Chicago, &c. Ry. Co., 63 Fed. Rept., 179; Greer v. L. & N. R. R., 94 Ky., 169. 2. There is no cause of action where the injury is brought about as a result of separate acts concurring to produce it; but only where the result is alleged to have been produced by several joint acts of the defendants. It appears in this case that all of the alleged joint acts of the defendants were not in fact joint acts, but separate and distinct acts, as the failure to provide proper equipment was the negligent act only of the defendant company. 3. The fact that the conductor and engineer left the train while it was moving slowly in the switch yard, does not constitute Pugh v. Chesapeake & Ohio Railway Company. negligence, as the fireman and brakeman who were left in charge were competent to manage it. L. & N. R. R. v. Moore, 83 Ky., 675. 4. But even if it was negligent to permit the fireman to take the engineer's place, and the fireman was negligent in the performance of his duties as engineer, but his negligence was not the cause of the injury, there can be no recovery. Bailey on Master and Servant, page 70; Gulf, &c. Ry. v. Schwabbe, 21 S. W. Rept., 706. 5. In order for the brakeman to recover for the negligence of the engineer, the negligence must have been gross. (Greer v. L. & N. R. R., 94 Ky., 174,) and there was no evidence in this action showing gross negligence upon the part of the fireman acting as engineer. 6. The evidence shows that only sufficient steam was added at the time of the injury to take up the slack of the train that was running out as the cars passed from grade to down-grade. 7. If the petition shows negligence upon the part of the plaintiff, he can not recover upon showing the defendant guilty. The same rule that applies to the plaintiff applies to the special officer and agent, who is charged with the negligent act. Thomas v. L. & N. R. R., 35 S. W. Rept., 910. 8. But if negligence upon the part of the then acting engineer had been alleged so as to authorize recovery on account of it, no recovery could be had, because brakeman and fireman are coservants and the common master is not responsible to either for the negligence of the other. Rhodes v. C. & O. Ry. Co., 95 Ky., 188. JUDGE PAYNTER DELIVERED THE OPINION OF THE COURT. While Pugh was the servant of the defendant company he he lost a leg by a car passing over it, which resulted in the necessary amputation of it. The action is against the railway company and Brown, Conway and Thornton, respectively conductor, engineer and fireman of the train, a car in which inflicted the injury. It is charged that the injury was inflicted by "the wanton and gross negligence of all defendants in operating said locomotive engine and cars, and in leaving the locomotive engine Pugh v. Chesapeake & Ohio Railway Company. of said train in charge and control of the fireman of said crew, and permitting said locomotive engine to be operated by said fireman, and in not having the cars of said train supplied with any apparatus or means to enable plaintiff to get on said cars, and in having the cars of said train unsafely, insecurely and defectively equipped, plaintiff was thrown under the cars of said train and run over, and thereby one of his legs was so injured that the same was soon thereafter necessarily amputated, and he was otherwise severely and permanently injured in his person." It is further charged that the defendants knew that the cars were not supplied with any apparatus or means to enable plaintiff to get on the cars; that the plaintiff had no knowledge thereof until after he was injured, and could not have had such knowledge by the use of ordinary care. The court sustained a motion to strike out all that part of the petition wherein it is stated that the cars were not supplied with necessary apparatus, etc., and that the defendants knew of the absence thereof from the cars, and the plaintiff did not know thereof until after he was injured, nor could have known it by the use of ordinary care. The court sustained the motion upon the ground that there were two causes of action stated-one against the corporate defendant and its employes for the negligence in operating the train; the other against the corporate defendant for not properly equipping the cars-and for the latter the employes were not liable, hence these causes of action were improperly joined. Without stopping to inquire whether a motion to strike was the proper proceeding to correct the error if one existed, |