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

• Decision Date: 08 January 1889
• Citation: 86 Ala. 372,5 So. 735
• Court: Alabama Supreme Court
• Parties: MONTGOMERY 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 &amp 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.

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. Section 2607 of our present Code, (Code 1876,§ 2911,) which authorizes a discontinuance to be entered as to parties defendant who are not served, was not intended, nor does it operate, to change this common-law rule applicable to actions ex delicto. A plaintiff may still bring his action against several tort-feasors, and dismiss as to one or more, whether served with process or not, and proceed to judgment against the remaining defendant, without discontinuing his entire action. Slade v. Street, 77 Ala. 576.

The dismissal of the present suit, which is one in case or ex delicto, against the defendants Chambers & Abercrombie, did not operate to discontinue the action against the other defendant, the Montgomery Gas-Light Company, and there was no error in overruling the motion of appellant to dismiss the entire action.

The principles settled in this case, when last before us on appeal, are, in our judgment, conclusive as to the correctness of the action of the circuit court in overruling the demurrers to both the original and the amended complaint. Railway Co. v. Chambers, 79 Ala. 338. We there decided that contributory negligence is a defense, the burden of proving which rests on the defendant, and that it is unnecessary for the plaintiff, in the first instance, to negative fault or neglect, or the want of ordinary care, on his part. 3 Brick. Dig. 672, § 25 et seq., and cases cited.

The original complaint certainly contained averments of fact showing a substantial cause of action. It alleges, in substance, that the defendant, being lawfully in possession of the plaintiff's side track, wrongfully and negligently placed a freight-car so near the main track of the plaintiff's road that a train of cars, operated by plaintiff's servants, ran into and were driven against said obstruction on the side track, from the effects of which four of said cars were broken to pieces, and damaged to the extent of $2,000. This was a wrongful act or tort on the part of the defendant, constituting a violation of a legal duty and resulting directly in pecuniary injury to the plaintiff, and hence the act complained of embraced all that was necessary to constitute a legal cause of action. It was entirely immaterial that it was the plaintiff's right and duty, as to...