Hall v. Seaboard Air Line R. Co.

• Decision Date: 05 June 1924
• Docket Number: 3 Div. 671.
• Parties: HALL v. SEABOARD AIR LINE R. CO. ET AL.
• Court: Alabama Supreme Court

100 So. 890

211 Ala. 602

HALL v. SEABOARD AIR LINE R. CO. ET AL.

3 Div. 671.

Supreme Court of Alabama

June 5, 1924

Rehearing Denied June 30, 1924.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for damages by E. O. Hall against the Seaboard Air Line Railroad Company and the Orange Crush Bottling Company of Alabama. Following adverse rulings on pleading, plaintiff takes nonsuit and appeals. Reversed, rendered, and remanded.

p>Page Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellant.

Steiner Crum & Weil and Ball & Beckwith, all of Montgomery, for appellees.

MILLER J.

This is a suit filed by plaintiff, E. O. Hall, the appellant, against the Seaboard Air Line Railroad Company, a corporation, and Orange Crush Bottling Company of Alabama, a corporation, for damages for personal injuries alleged to have been sustained by him while walking along a public road. The public road crossed the railroad track of this railroad company. The engine of the railroad company collided with a motor truck of the bottling company as each was crossing, one the track and the other the public road, at this public road crossing, and by reason thereof the plaintiff was injured by being struck or hit by the truck or some of the contents of the truck.

There are two counts in the complaint. The defendants separately demurred to each count, because neither count showed a joint liability of the defendants, and there was a misjoinder of parties defendant, and on other grounds. Demurrers of the defendants to each count were sustained by the court. On account thereof plaintiff took a nonsuit, the cause was dismissed, plaintiff was taxed with the court cost, and this appeal by plaintiff is prosecuted from that judgment. The sustaining by the court of the demurrers of the defendants to each count of the complaint are the errors assigned.

Each defendant owed the plaintiff the duty to refrain from negligently injuring him while walking in or along the public road at or near this public road crossing, and each count shows the duty and breach of it with sufficient certainty by facts under our system of pleading. Michie, Dig. vol. 10, § 56, p. 595. Are the defendants jointly liable under the averments of each count of the complaint, is the real question presented by the demurrers. Each count alleges that the defendants or their respective agents, while acting within the line of their respective employments, so negligently conducted their respective businesses that by reason thereof the engine of one and the truck of the other collided at this public road crossing, and as a proximate result or consequence of the collision the plaintiff was injured by being struck or hit by the truck or some of its contents, and he was a pedestrian in this public road at the time. In 29 Cyc. p. 565, note 69, we find the following:

"When the injury is the result of the concurring negligence of two or more parties they may be sued jointly or severally."

In 26 R. C. L. p. 764, § 13, note 9, we find:

"There is a class of cases in which the defendants are jointly and severally liable, although they are several and not joint tortfeasors, as where there is no concert of action or unity of purpose, but the acts are concurrent as to place and time, and unite in setting in operation a single destructive or dangerous force, which produces the injury."

In 1 Cooley on Torts (3d Ed.) p. 247, note 6, we find this:

"The weight of authority will, we think, support the more general proposition that, where the negligence of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable although there is no common duty, common design, or concert action."

This appears to be the general rule gathered from the text-writers, based on the opinions of the different courts and it has met with approval of this court.

This court has written on this subject. The appellant, plaintiff in drawing these counts, appears to have followed in part, at least, a count in Alabama Power Co. v. Talmadge, ...