Montgomery Gaslight Co. v. Montgomery & E. Ry. Co.

CourtSupreme Court of Alabama
Writing for the CourtSOMERVILLE, J.
Citation86 Ala. 372,5 So. 735
Decision Date08 January 1889
PartiesMONTGOMERY GAS-LIGHT CO. v. MONTGOMERY & E. RY. CO.

5 So. 735

86 Ala. 372

MONTGOMERY GAS-LIGHT CO.
v.
MONTGOMERY & E. RY.
CO.

Supreme Court of Alabama

January 8, 1889


Appeal from circuit court, Montgomery county; JOHN P. HUBBARD, Judge.

Action by the Montgomery & Eufaula Railway Company against the Montgomery Gas-Light Company and others, for damages from injuries to a moving train of cars, caused by a collision with several empty cars, which were standing on a side track, and alleged to have been left there by the negligence of the defendants. Defendants' special plea averred, in substance, that the side track was part of plaintiff's railway, and at the time of the injury in its possession and under its control; that the Louisville & Nashville Railroad Company had for a long time, with plaintiff's knowledge and consent, delivered cars loaded with coal for defendants on the side track, to be unloaded by defendants, and, after being unloaded, to be taken away by the Louisville & Nashville Railroad Company, for which defendants paid the latter one dollar for each car so delivered, and paid plaintiff sixty cents for each car for the use of the side track; that a municipal ordinance of the city of Montgomery, in force at the time, prohibited any locomotive or train of cars, when moving backward, to run at a greater speed than four miles per hour; but plaintiff's engine and cars were run backward at a greater rate of speed, and no proper provision was made for giving signals to the engineer in charge in case of danger. A separate plea was also filed by the Montgomery Gas-Light Company, which further alleged that, at the time of and before the injury, Chambers & Abercrombie had contracted with the gas-light company to unload its cars upon the side track, and the cars which caused the injury were, at the time thereof, under their control and management, or under that of their servants and employés, and were not under control of the gas-light company, or any of its servants or employés, and it had no power or authority to control or discharge such employés of Chambers & Abercrombie; and that the gas-light company did not in any way direct Chambers & Abercrombie, or any of their servants or employés, to push or place the cars on the side track in the position where they were when the injury occurred. Plaintiff entered a discontinuance as against said Chambers & Abercrombie, and because thereof the gas-light company moved to dismiss the suit entire, which motion was overruled. A demurrer to the complaint was overruled, and a demurrer to the second plea was sustained. The court refused defendant's request to charge: "(10) If the jury believe from the evidence that the cars alleged to have been injured were the property of the Louisville & Nashville Railroad Company, then they cannot find a verdict for the plaintiff for the damages done to said cars." "(12) If the jury believe all the evidence, they must find a verdict for the defendant." The gas-light company appeals. [5 So. 736]

W. S. Thorington, for appellant.

SOMERVILLE, J.

The rule of the common law was that in actions ex contractu a discontinuance as to one or more of several defendants, without sufficient legal excuse therefor, operated to discontinue the whole action. Reynolds v. Simpkins, 62 Ala. 415; Mock v. Walker, 42 Ala. 668. But in actions ex delicto the plaintiff could discontinue as to one or more defendants, and maintain his action against the remaining defendants, without discontinuing the whole suit. 5 Amer. & Eng. Cyclop. Law, 676; U. S. v. Linn, 1 How. 104; Weakly v. Royer, 3 Watts, 460. This could be done even after verdict, though all the defendants had joined in the same pleas, and been found guilty of the same tort; the plaintiff being permitted to enter a nolle prosequi as to some of them, and take judgment against the rest. Hardy v. Thomas, 23 Miss. 544; Salmon v. Smith, 1 Saund. 207...

To continue reading

Request your trial
37 practice notes
  • Dutcher v. Wabash R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 9, 1912
    ...thereof, without which the injury would not have occurred.' 7 Am. & Eng. Ency. of Law (2d Ed.) 371; Montgomery Gas Light Co. v. Railroad, 86 Ala. 372 [5 South. 735]; Moakler v. Railroad, 18 Or. 189 [22 Pac. 948, 6 L. R. A. 656, 17 Am. St. Rep. 717]; Woodell v. W. Va. Improvement Co., 38 W. ......
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...so operate as to all. See, also, Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653 (ex delicto); Montgomery G.L. Co. v. M. & E.R. Co., 86 Ala. 372, 5 So. 735 (ex delicto); Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A. (N.S.) 670, 14 Ann.Cas. 1139 (damages for assault and battery)......
  • U.S. Fidelity and Guaranty Co. v. Bass, No. 77-3088
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 25, 1980
    ...So. 451 (1960); Farrow v. Wooley & Jordan, 149 Ala. 373, 43 So. 144 (1907); Montgomery Gas-Light Co. v. Montgomery & Eufaula Railway Co., 86 Ala. 372, 5 So. 735 (1888); Hare v. Fuller, 7 Ala. 717 (1845); T. and W. Brandon v. Planters & Merchants' Bank, 1 Stew. 320 (1828); Warren v. Peppers,......
  • In re Initiative Petition No. 366, NO. 366
    • United States
    • Supreme Court of Oklahoma
    • April 2, 2002
    ...the damaged or lost chattel remains in the bailor; Hare v. Fuller, 7 Ala. 717 (1845); Montgomery Gas-Light Co. v. Montgomery E. Ry. Co., 86 Ala. 372, 5 So. 735 (1889); Associates Discount Corp. v. Gillineau, 322 Mass. 490, 78 N.E.2d 192, 193 (1948); Atkinson, The Real Party In Interest Rule......
  • Request a trial to view additional results
37 cases
  • Dutcher v. Wabash R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 9, 1912
    ...thereof, without which the injury would not have occurred.' 7 Am. & Eng. Ency. of Law (2d Ed.) 371; Montgomery Gas Light Co. v. Railroad, 86 Ala. 372 [5 South. 735]; Moakler v. Railroad, 18 Or. 189 [22 Pac. 948, 6 L. R. A. 656, 17 Am. St. Rep. 717]; Woodell v. W. Va. Improvement Co., 38 W. ......
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...so operate as to all. See, also, Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653 (ex delicto); Montgomery G.L. Co. v. M. & E.R. Co., 86 Ala. 372, 5 So. 735 (ex delicto); Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A. (N.S.) 670, 14 Ann.Cas. 1139 (damages for assault and battery)......
  • In re Initiative Petition No. 366, NO. 366
    • United States
    • Supreme Court of Oklahoma
    • April 2, 2002
    ...the damaged or lost chattel remains in the bailor; Hare v. Fuller, 7 Ala. 717 (1845); Montgomery Gas-Light Co. v. Montgomery E. Ry. Co., 86 Ala. 372, 5 So. 735 (1889); Associates Discount Corp. v. Gillineau, 322 Mass. 490, 78 N.E.2d 192, 193 (1948); Atkinson, The Real Party In Interest Rule......
  • Cary by and through Cary v. Oneok, Inc., Nos. 81356
    • United States
    • Supreme Court of Oklahoma
    • May 6, 1997
    ...recover for conversion of or injury to the chattel. Hare v. Fuller, 7 Ala. 717 (1845); Montgomery Gas-Light Co. v. Montgomery E. Ry. Co., 86 Ala. 372, 5 So. 735 (1889); Associates Discount Corp. v. Gillineau, 322 Mass. 490, 78 N.E.2d 192, 193 (1948); Atkinson, The Real Party In Interest Rul......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT