M. Livingston & Co. v. Philley

• Decision Date: 10 October 1913
• Parties: M. LIVINGSTON & CO. v. PHILLEY et al.
• Court: Kentucky Court of Appeals

159 S.W. 665

155 Ky. 224

M. LIVINGSTON & CO. v. PHILLEY et al.

Court of Appeals of Kentucky.

October 10, 1913

Appeal from Circuit Court, McCracken County.

Action by Maggie Philley against M. Livingston & Co. and another. From a judgment for plaintiff, the defendant named appeals. Affirmed.

J. D Mocquot, of Paducah, for appellant.

Bradshaw & Bradshaw and Arthur Y. Martin, all of Paducah, for appellees.

HOBSON C.J.

South Fourth street in Paducah runs for several blocks across a deep slough. The street has been built upon a fill which is about 25 feet high; the fill at the top being about 19 feet wide. On each side of the fill the city set a line of posts 8 feet apart, and nailed a plank to the posts to serve as a guard rail. On October 17, 1912, Mrs. Maggie Philley was driving into the city with her husband, and when they were about the middle of the fill a large motor truck belonging to M. Livingston & Co. approached them. The horse took fright as the truck approached, and backed the vehicle against the guard rail with such force as to break it; the buggy and horse and the occupants of the buggy fell down the fill. Mrs Philley was severely hurt, and this suit was brought by her to recover for her injuries against both the city and the owners of the motor truck. There was evidence on the trial showing that the horse took fright some time before the motor truck reached them, and that the driver of the truck, paying no attention to this, continued to approach them until the horse backed the buggy down over the fill. There was also some evidence that the guard rail put up by the city was insufficient. The case was submitted to a jury who returned a verdict in favor of the city and against M. Livingston & Co. the owners of the truck, in the sum of $2,000. M. Livingston & Co. appeal from the judgment entered on the verdict.

M Livingston & Co. made their answer a cross-petition against the city, charging that the negligence of the city in failing to maintain a sufficient guard rail was the proximate cause of the accident, and praying judgment over against the city for any amount that it might be held liable to Mrs. Philley for. The circuit court sustained the demurrer of the city to the cross-petition, and of this Livingston & Co. complain. The general rule is that there is no contribution between joint tort-feasors. It is true it has been held that one who is not primarily liable, but has been made answerable for the wrongful acts of another, may recover the amount he has been compelled to pay. Blocker v. Owensboro, 129 Ky. 75 110 S.W. 369, 33 Ky. Law Rep. 478; Georgetown v. Groff, 136 Ky. 662, 124 S.W. 888. But when the plaintiff sues two alleged wrongdoers, neither...