Yardley v. Rutland R. Co.

Decision Date07 January 1931
Citation153 A. 195
PartiesYARDLEY v. RUTLAND R. CO. RUSKIN v. SAME.
CourtVermont Supreme Court

Exceptions from Bennington County Court; John C. Sherburne, Judge.

Separate actions by Arthur Yardley, and by Abe Ruskin, against Rutland Railroad Company. Verdict for defendant in each case. On plaintiff's exceptions in each case.

Judgment affirmed in each case.

Argued before POWERS, C. J, and SLACK, MOULTON, WILLCOX, and THOMPSON, JJ.

Edward H. Holden, Francis E. Morrissey, and Norton Barber, all of Bennington, for plaintiffs.

Frank C. Archibald, of Manchester Center, and Edwin W. Lawrence, of Rutland, for defendant.

SLACK, J.

Arthur Yardley drove an automobile which he hired from Abe Ruskin against one of defendant's freight cars that stood on a grade crossing of the latter's railroad. Yardley sustained personal injuries, and the automobile was badly damaged. Each party brought an action against the defendant predicated upon its negligence; Yardley to recover for his injuries, and Ruskin to recover for the damage to his automobile. The negligence relied upon was the same in both cases, the same counsel represented the respective parties in both, they were pending in the same court, and were ripe for trial. The trial court of its own motion ordered them tried together, to which each plaintiff excepted. These exceptions present the first question for review.

These cases were not consolidated, but were simply tried together, and a separate judgment entered in each. This is spoken of in some of the cases as a consolidation. So, too, is the procedure under the so-called "consolidation rule" introduced into the English courts in the time of Lord Mansfield under which in certain instances a stay of proceedings was ordered in all but one of several cases, and the result reached in that case was made the basis for the disposition of the others. The failure to distinguish between these methods of procedure, neither of which, strictly speaking, is a consolidation, and actual consolidation, where several suits are merged and thereafter proceed to judgment as a single action, is doubtless responsible for some of the conflict found in the cases. Then, too, the procedure in the federal and many of the state courts respecting consolidation and the trial of several actions together is regulated by statute, which leads to still further confusion. The result is that no universal, or general, rule is deducible from the authorities.

Independent of statutory authority, courts of general jurisdiction have inherent power to consolidate different causes, or order them tried together, when the circumstances authorize such course; and, unless otherwise provided by statute, questions respecting such procedure are addressed to the discretion of the trial court, and its action will not be revised unless an abuse of discretion clearly appears.

The rule respecting actual consolidation is stated thus in Corpus Juris, vol. I, p. 1124, par. 318: "Unless otherwise provided by statute, the conditions ordinarily prescribed as authorizing, and essential to authorize, a consolidation of actions at law are that the different actions shall be pending in the same court at the same time, between the same parties, and involving substantially the same subject matter, issues, and defenses."

But in most jurisdictions the requirement that the parties be the same does not obtain where several cases are merely tried together. In some states this condition is done away with by statute similar in effect to the federal statute which provides that, "when causes of a like nature or relative to the same question are pending before a court of the United States, or of a Territory, the court may make such orders," etc. (see Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 12 S. Ct. 909, 36 L. Ed. 706, and St. Louis, I. M. & S. Ry. Co. v. Harden, 83 Ark. 255, 103 S. W. 614), and in others it is regarded as unessential in the absence of statutory elimination. The rule in Massachusetts, where there is no statute regarding the matter, is stated by Rugg, C. J., in Lumiansky v. Tessier, 213 Mass. 182, 99 N. E. 1051, 1054, Ann. Cas. 1913E, 1049, thus: "Where several causes are pending between the same or different parties which grow out of a single transaction or which involve an inquiry into the same event in its general aspects, although the details of evidence may vary materially in fixing responsibility, the court may order them tried together. But they continue separate so far as concerns' docket entries, verdicts, judgments and all aspects save only the one of joint trial." See Bradford v. Boston & Maine Railroad, 225 Mass. 129, 113 N. E. 1042; Sullivan v. Boston Electric Light Co., 181 Mass. 294, 63 N. E. 904; Springfield v. Sleeper, 115 Mass. 587; Witherlee v. Ocean Ins. Co., 24 Pick. (Mass.) 67; Azinger v. Penn. Railroad Co., 262 Pa. 242, 105 A. 87; Reid v. Nichols, 166 Ky. 423, 179 S. W. 440; Benge's Adm'r v. Fouts, 163 Ky. 796, 174 S. W. 510; St. Louis, I. M. § S. Ry. Co. v. Harden, supra. In Bradford v. Boston & Maine Railroad and Azinger v. Penn. Railroad Co., the plaintiffs were different in the cases tried together, and they were the ones who challenged the court's action, but without avail.

It is clearly apparent that the reason for requiring the parties to be the same in causes actually consolidated does not exist where causes are simply tried together, but in all other respects retain their identity.

A careful examination of the question satisfies us that the court did not err in trying these cases together. They grew out of the same accident, and, so far as the defendant's negligence was concerned, depended upon precisely the same evidence. While the question of Yardley's contributory negligence was involved in his case, or might be, and was not in the other, that issue was so clean cut that it is not apparent how Ruskin could have been harmed by a joint trial if that matter was properly dealt with by the court, and Yardley certainly could not have been. A situation somewhat similar in principle arose in State v. Founder and Cox, 68 Vt. 262, 35 A. 178, where it was held that Founder, who was jointly indicted with Cox for murder, was not entitled, as a matter of right, to a separate trial because evidence was likely to be introduced against Cox which it was claimed would be highly prejudicial to Fournier. See, also, State v. Meaker, 54 Vt. 112.

At the close of the plaintiffs' evidence the defendant moved for a directed verdict in each case, which motion was granted, and each plaintiff excepted.

The grounds of the motion in the Yardley case were that the evidence failed to show negligence on the part of the defendant and did show negligence on the part of Yardley. The motion in the Ruskin case was predicated solely upon the lack of evidence tending to show negligence on the part of the defendant.

We first consider whether the evidence, viewed in the light...

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