City of Louisville v. Louisville Ry. Co.

• Decision Date: 26 November 1913
• Parties: CITY OF LOUISVILLE v. LOUISVILLE RY. CO.
• Court: Kentucky Court of Appeals

160 S.W. 771

156 Ky. 141

CITY OF LOUISVILLE v. LOUISVILLE RY. CO.

Court of Appeals of Kentucky.

November 26, 1913

Appeal from Circuit Court, Jefferson County, Common Pleas Branch No 1.

Action by the City of Louisville against the Louisville Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Leon P Lewis and Pendleton Beckley, both of Louisville, for appellant.

Fairleigh Straus & Fairleigh and Howard B. Lee, all of Louisville, for appellee.

TURNER J.

In August, 1906, Edward Hart was killed in a collision between a wagon which he was driving on the streets in Louisville and a street car belonging to appellee. His administrator instituted his action claiming damages against the city and the street railway company jointly. At the beginning of the trial the lower court dismissed the plaintiff's action as to the railway company, and proceeded with it as against the city. A judgment was rendered for $4,000 against the city. From the action of the court dismissing as to the railway company, Hart's administrator appealed to this court, and the judgment was affirmed upon the ground that there was nothing in the record to show upon what the action of the lower court in dismissing was based. Hart's Adm'r v. Louisville Ry. Co., 142 Ky. 263, 134 S.W. 140. From the judgment against it for $4,000 the city appealed to this court, and that judgment was affirmed. City of Louisville v. Hart's Adm'r, 143 Ky. 171, 136 S.W. 212, 35 L.R.A. (N. S.) 207. Thereafter the city paid in full this judgment, together with all costs, attorneys' fees, and damages amounting to something over $5,000, and has instituted this action against the railway company, asking judgment in contribution for one-half of the amount so paid by it. The allegation of the petition is: "That said accident occurred as the result of the joint concurring negligence of this plaintiff and the defendant herein; that the negligence of this plaintiff consisted in permitting its street at the point mentioned to be in a dangerous and defective condition; that the negligence of the defendant consisted in operating the car which collided with said wagon in a negligent manner and at a rapid, reckless, and negligent rate of speed, and in failing to give notice of the approach of said car." Upon the appeal of the city in the case above referred to, it was insisted for the city that its failure to keep its street in repair was not the proximate cause of the injury to Hart, and therefore it was not liable. To that contention the court responded as follows: "To again restate briefly, we have this state of facts: Hart on account of defects in the street that rendered it unsafe for travel was thrown from his wagon and fell on the street car track immediately in front of an approaching car that was running at a dangerous and negligent rate of speed, and was run over and killed by the car. Now, we may assume that if the street had been reasonably safe he would not have been thrown from his wagon, and of course would not have been killed. We may further assume that if the street car had been operated with ordinary care, that it could have been stopped before striking him, and so although the defective condition of the street caused him to fall on the track, he would yet have escaped injury except for the negligence in the operation of the car. We have then two approximately concurring acts of negligence by two independent agencies that brought about his death. Neither act of negligence in itself, without the co-operation of the other, would have harmed him. On the one hand, however fast the car was going, unless he had been thrown in front of it, he would not have been killed. On the other hand, although thrown on the car track by the bad street, he would have escaped death if it had been prudently operated. The question now is: Which of these acts of negligence was the proximate cause of his death? We think that both of them may be so treated. Two agencies acting entirely independent of the other, as in this case, may jointly and concurrently be the proximate cause of an injury, when it would not have happened except for the concurrence at approximately the same time and place of the two negligent acts." So we have a plaintiff, confessedly negligent, and whose negligence has been adjudged to be, concurrently with that of another, the proximate cause of an injury, demanding contribution from such other whose concurrent negligent act was separate and distinct from the negligent act of the plaintiff. The lower court dismissed the plaintiff's petition, and it has appealed.

It is urged for appellant that the general rule that there can be no contribution between wrongdoers has no application to the facts of this case; that, inasmuch as neither of the parties stood in the attitude of an intentional wrongdoer and neither's negligent act was tainted with any moral wrong, contribution should be allowed.

It may be admitted that there are many exceptions to the general rule; but, looking to the reason of that rule and to the broad and wise policy upon which it is based, we have concluded that this case is no exception.

Cooley on Torts, vol. 1 (3d Ed.), in discussing contribution and indemnity between wrongdoers, goes at length into the reasons of the general rule, and at page 260 says: "It may be thought that the maxim that the law will not relieve a party from the consequences of his own wrongdoing partakes more of severity to the particular person singled out by the plaintiff for pursuit, than it does of general justice. It may be right to punish him, but is it right to exempt from punishment others equally guilty? If strict justice, as between individuals, were all that was aimed at, we should be compelled to answer this question in the negative; and we must therefore look further for the reason of the rule. It has already been intimated that the rule, as we have given it, is one of very general application, and not by any means confined to cases of joint torts. Whoever, by his pleadings in any court of justice, avows that he has been engaged with others in an unlawful action, or has concerted with them an unlawful enterprise, and that in arranging for or carrying it out he has been unfairly treated by his associates, or has suffered an injustice which they should redress, will be met by the refusal of the court to look any further than his complaint, which it will at once order dismissed. The following reasons may be assigned for this action: (1) The discouragement of all illegal transactions by distinctly apprising every person who engages in them that the risk he incurs is not merely of being compelled to share with the others the loss that may follow, for this in many cases would be insignificant, and in all cases would be small in proportion to the size and formidable character of the combination. He is therefore given to understand that whoever takes part in an illegal transaction must do so under a responsibility only measured by the whole extent of the injury or loss; an understanding very well calculated to make men to hesitate who, under a different rule, would be disposed to give full scope to evil inclinations. But (2) the state, from a consideration of its own pecuniary interests and of the interests of other...