Pugh v. Chesapeake & Ohio Railway Company.

we will consider the real question involved. For an injury inflicted, producing a damage, by two or more wrongdoers an action may be maintained by the one so injured, either against one of them or against all of them. The liability of the wrongdoer is joint and several. The injured party can elect whether he will proceed against one of them or all of them. While several may be guilty of several and distinct negligent acts, yet if their concurrent effect is to produce an actionable injury, they are all liable therefor. The action, properly speaking, is not to recover for the negligent act or acts, but it is to recover damages for the injury which they produced. A party may have been guilty of negligence, but if no injury resulted from it no action could be maintained therefor.

Parties may form a conspiracy to injure one. Each of the conspirators may be guilty of distinct acts, all of which concur in producing the injury. An action may be maintained against all of them to recover the damages resulting to the injured party. So if an injury is produced, not by design but by the concurrent acts of negligence of two or more persons, although their acts were distinct and separate, still they incur a joint and separate liability for the injury which they produced. If the injured party should sue one of the tort feasors and receive satisfaction from such one, he could not recover from the other wrongdoers, as he would not be entitled to be compensated but once for the injury.

In Stone v. Dickinson, 5 Allen, 29, where several different creditors, acting separately, without concert, and without knowledge that they were employing a common agent, wrongfully caused their debtor to be arrested on their several

Pugh v. Chesapeake & Ohio Railway Company.

writs by the same officer, who served the writs simultaneously, and by virtue thereof committed the debtor to jail, where he was confined upon all of them at the same time, they were held to be joint trepassers.

The court said, in Cuddy v. Horn, 46 Mich., 603: "An act wrongfully done by the joint agency or co-operation of sev eral persons will render them liable jointly or severally."

The court held in Colgrove v. New York & New Haven R. R. Co., &c., 20 N. Y., 492, a passenger injured by a collision resulting from the concurrent negligence of two railroad corporations may maintain an action against both.

In Barrett v. Third Avenue R. R. Co., 45 N. Y., 628, the court adjudged that the comparative degrees in the culpability of the two will not affect the liability of either. If both were negligent in a manner contributing to the result, they are liable jointly and severally.

In Flaherty v. Minneapolis & St. Louis Ry. Co., 39 Minn., 328, it was held that the injury having been caused directly by the concurrent wrongful acts or omissions of both defendants, all tending directly to produce the one resulting event, the action against them jointly was maintainable, although there was no concert of action or common purpose between them.

In Bunting v. Hogsett, 139 Pa. St., 376, the court recognized the general rule to be that if a person suffers injury from the joint negligence of two parties, and both are negligent in a manner which contributes to the injury, they both are liable jointly and severally, and it would seem in principle to be a matter of no consequence that one of them is a common carrier. Neither the comparative degrees of care

Pugh v. Chesapeake & Ohio Railway Company.

required nor the comparative degrees of culpability established can affect the liability of either.

A boy

In Village of Centreville v. Cook, 179 Ill., 155, the facts which the evidence tended to prove were these: some fifteen years of age, while in the observance of ordinary care for his own safety, passing along a much-used public sidewalk of the defendant, was, by reason of the inadvertent or negligent shoving by one boy of another boy against him, jostled or pushed from the sidewalk, at a point where it was elevated some six feet above the ground and was unprotected by railing or other guard, and thereby severely injured in one of his limbs. The court said: "It is not perceived how upon principle the intervention of the negligent act of a third person, over whom neither the plaintiff nor the defendant has any control, can be different in its effect or consequence in such case from the intervention therein of an accident having a like effect. The former no more than the latter breaks the causal connection of the negligence of the city or the village with the injury. The injured party can no more anticipate and guard against the one than the other, and the elements which constitute the negligence of the city or village must be precisely the same in each case; and we have accordingly held that where a party is injured by the concurring negligence of two different parties, each and both are liable, and they may be sued jointly or separately."

The case of Grand Trunk Ry. Co. v. Cummings, 106 U. S., 702, is in accord with the cases cited, and the court said: "If the negligence of the company contributed to it, it must necessarily have been an immediate cause of the accident,

Pugh v. Chesapeake & Ohio Railway Company.

and it is no defense, that another was likewise guilty of wrong."

Brown v. Coxe Bros. & Co., 75 Federal Rep., 689, is a wellconsidered and instructive case. It is alleged in that case that the plaintiff while employed on a steamboat was injured by the falling of a coal bucket operated by Coxe Bros. & Co., and that they were negligent in using defective machinery, and in operating it negligently, and that the plaintiff's employer, the steamboat owner, was negligent in not providing him a safe place to work and in not warning him of the danger. The court held that, as the alleged acts of negligence of Coxe Bros. & Co., and the steamboat owner, though distinct in themselves, concurred in producing the injury, their liability was joint as well as several.

In Bishop on Noncontract Law (section 518) it is stated that "the rule of law is that a person contributing to a tort, whether his fellow contributors are men, natural or other forces or things, is responsible for the whole, the same as though he had done all without help."

Wharton's Law of Negligence (section 395) says: "The comparative degrees in the culpability of the two will not affect the liability of either. If both were negligent in a manner contributing to the result, they are liable, jointly or severally."

While the alleged negligence of the corporate defendant in failing to supply the cars with necessary apparatus for the use of its servants employed in and about its business of operating the cars may have continued for days or weeks before the accident, still it existed at the moment of the acci

Pugh v. Chesapeake & Ohio Railway Company.

dent, and concurred with the alleged negligence of its co-defendants in producing the injury.

It is freely admitted that one person is not liable for the effect of the negligent acts of another person (except in cases of agency, etc.), but when he is guilty of negligent acts which, together with the negligent acts of another, produce an injury, then he becomes jointly and severally liable for an injury produced. Hence, in a case when passengers are injured by a collision of trains of different companies, when the negligence of both co-operate to cause it, both are jointly and severally liable.

We can perceive no reason why an employer, who has been guilty of negligence in failing to discharge some duty imposed on him, and its agent has been guilty of a separate act of negligence, and both of these negligent acts concur in producing an injury, why both are not liable jointly and severally. Each must be regarded as having been the immediate cause of the accident which produced the injury. But one cause of action is stated in the petition.

Of course an employer or an agent can not be held liable for an injury to which he did not contribute by his own negligence.

We are of the opinion that the facts appearing in the bill of exceptions entitled the plaintiff to have his case submitted to a jury. As there is to be another trial, we forbear to comment upon the evidence.

The court can by proper instructions submit the questions of law that may arise from the evidence as to the respective liabilities of the several defendants.

The court erred in sustaining the motion to strike out the