Pugh v. Chesapeake & O. Ry. Co.

• Decision Date: 13 March 1897
• Citation: 101 Ky. 77,39 S.W. 695
• Parties: PUGH v. CHESAPEAKE & O. RY. CO. et al.
• Court: Kentucky Court of Appeals

39 S.W. 695

101 Ky. 77

PUGH v. CHESAPEAKE & O. RY. CO. et al.

Court of Appeals of Kentucky.

March 13, 1897

Appeal from circuit court, Lewis county.

"To be officially reported."

Action by R. Pugh against the Chesapeake & Ohio Railway Company and others for personal injuries caused by defendants' negligence. From a judgment for defendants, plaintiff appeals. Reversed.

Wm Goebel and W. H. Holt, for appellant.

Wadsworth & Cochran, for appellees.

PAYNTER J.

While Pugh was the servant of the defendant company, he lost a leg by a car passing over it, which resulted in the necessary amputation of it. The action is against the railway company and Brown, Conway, and Thornton, respectively conductor engineer, and fireman of the train, a car in which inflicted the injury. It is charged that the injury was inflicted by "the wanton and gross negligence of all defendants in operating said locomotive engine and cars, and in leaving the locomotive engine of said train in charge and control of the fireman of said crew, and permitting said locomotive engine to be operated by said fireman, and in not having the cars of said train supplied with any apparatus or means to enable plaintiff to get on said cars, and in having the cars of said train unsafely, insecurely, and defectively equipped. Plaintiff was thrown under the cars of said train and run over, thereby one of his legs was so injured that the same was soon thereafter necessarily amputated, and he was otherwise severely and permanently injured in his person." It is further charged that the defendant knew that the cars were not supplied with any apparatus or means to enable plaintiff to get on the cars; that the plaintiff had no knowledge thereof until after he was injured, and could not have had such knowledge by the use of ordinary care. The court sustained a motion to strike out all that part of the petition wherein it is stated that the cars were not supplied with necessary apparatus, etc., and that the defendant knew of the absence thereof from the cars, and the plaintiff did not know thereof until after he was injured, nor could have known it by the use of ordinary care. The court sustained the motion upon the grounds that there were two causes of action stated,-one against the corporate defendant and its employés for the negligence in operating the train; the other against the corporate defendant for not properly equipping the cars,-and for the latter the employés were not liable, and hence these causes of action were improperly joined. Without stopping to inquire whether a motion to strike was the proper proceeding to correct the error, if one existed, we will consider the real questions involved.

For an injury inflicted, producing a damage, by two or more wrongdoers, an action may be maintained by the one so injured, either against one of them or against all of them. The liability of the wrongdoers is joint and several. The injured party can elect whether he will proceed against one of them or all of them. While several may be guilty of several and distinct negligent acts, yet, if their concurrent effect is to produce an actionable injury, they are all liable therefor. The action, properly speaking, is not to recover for the negligent act or acts, but it is to recover damages for the injury which they produced. A party may have been guilty of negligence, but, if no injury resulted from it, no action could be maintained therefor. Parties may form a conspiracy to injure one. Each of the conspirators may be guilty of distinct acts, all of which concur in producing the injury. An action may be maintained against all of them to recover the damage resulting to the injured party. So, if an injury is produced, not by design, but by the concurrent acts of negligence of two or more persons, although their acts were distinct and separate, still they incur a joint and separate liability for the injury which they produced. If the injured party should sue one of the tort feasors and receive satisfaction from such one, he could not recover from the other wrongdoers, as he would be entitled to be compensated but once for the injury. In Stone v. Dickinson, 5 Allen, 29, where several different creditors, acting separately, without concert, and without knowledge that they were employing a common agent, wrongfully caused their debtor to be arrested on their several writs, by the same officer who served the writs simultaneously, and by virtue thereof committed the debtor to jail, where he was confined upon all of them at the same time, they were held to be joint trespassers. The court said in Cuddy v. Horn, 46 Mich. 603, 10 N.W. 34, "An act wrongfully done by the joint agency or co-operation of several persons will render them liable jointly or severally." The court held in Colegrove v. Railroad Co., 20 N.Y. 492, that a passenger injured by a collision resulting...