Cormier v. Worcester Consol. St. Ry. Co.

• Decision Date: 28 November 1919
• Citation: 125 N.E. 549,234 Mass. 193
• Parties: CORMIER v. WORCESTER CONSOL. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 193

125 N.E. 549

CORMIER

v.WORCESTER CONSOL. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 28, 1919.

Exceptions from Superior Court, Worcester County; George A. Sanderson, Judge.

Action by Josephine Cormier against the Worcester Consolidated Street Railway Company. Verdict was directed for defendant, and plaintiff excepts. Exceptions overruled.Clarence E. Tupper and George H. Richardson, both of Worcester, for plaintiff.

Charles C. Milton, John M. Thayer, and Francis H. Dewey, all of Worcester, for defendant.

CARROLL, J.

The plaintiff was injured while riding on an automobile truck owned by William F. O'Brien. The truck carried a load of highly inflammable viscoloid waste and was proceeding along the defendant's tracks on Lancaster street, Leominster. The jury could have found on the facts presented that owing to the defendant's negligence a defective trolley wire broke and fell on the truck setting fire to it, injuring the plaintiff and burning her clothing. There was evidence that before the wire fell, a boy who had been smoking a pipe, jumped on the truck, and as he did so, knocked the pipe on the side of the truck and the ashes dropped to the ground; that a short time after this the boxes of waste caught fire and the blaze from the fire extended above the normal position of the trolley wire. It was the contention of the defendant that the waste became ignited at some distance before the truck reached the point where the wire fell and that the heat melted the copper wire and caused it to fall.

Subsequent to the accident the plaintiff, in consideration of $75 paid her, signed an instrument under seal releasing O'Brien from all claims for damages resulting from the injury. The jury were directed by the court to return a verdict for the defendant, on the ground that the release signed by the plaintiff and delivered to O'Brien, barred her right against the defendant.

The entire injury to the plaintiff was caused by the same tort. There could be but one indemnity for the wrong and the release of one joint tortfeasor released all the wrongdoers. Stone v. Dickinson, 5 Allen, 29, 81 Am. Dec. 727;Brewer v. Casey, 196 Mass. 384, 82 N. E. 45. This rule applies where one is injured by the combined or concurring negligence of two or more persons acting independently of each other, with no concert of action, and where the wrong done was not intentional. Feneff v. Boston & Maine R. R., 196 Mass. 575, 582, 82 N. E. 705.The same principle is pertinent when the person released or discharged from liability was not in fact responsible for the injury, if something in the nature of a claim has been made upon him and there was a possible liability under the rules of law. Pickwick v. McCauliff, 193 Mass. 70, 78 N. E. 730,8 Ann. Cas. 1041;Leddy v. Barney, 139 Mass. 394, 2 N. E. 107.

The plaintiff could have contended that after the waste took fire the driver of the truck was negligent in continuing in the defendant's track under the trolley wire, which was old and...