Howard v. Union Traction Co.

Per Curiam, The plaintiffs in their statement of claim set forth that the traction company was a corporation engaged in the business of carrying passengers for hire, and the gas company was a corporation engaged in the business of manufacturing and supplying gas. They further averred that the plaintiffs were passengers on the car of the traction company on August 7,1899, and that the traction company undertook to carry them safely, and that as they were in the act of getting off from the car, one of them, the wife, was thrown by a block of wood which was placed across a trench which had been recently dug and filled up by the gas company, and which was left in a defective and dangerous condition, and that she thereby sustained a severe injury for which the present action was brought. It was further alleged that the plaintiffs were directed to get off the car at a defective and dangerous place, and that therefore the injury sustained was the result of the joint negligence of both defendants. To this statement of claim the defendants demurred, chiefly on the ground that the injury complained of was not the result of any joint act of the defendants, and therefore they could not be sued as joint tort feasors. The learned court below sustained the demurrer. We are very clear that upon the cause of action as stated in the claim there ivas no community of fault by the two defendants in the act which occasioned the injury. The statement of claim alleges that the injury was caused by the block of wood placed and maintained by the gas company in a defec 396 tive and dangerous condition over a trench dug by that company. It is too plain for argument that this was the sole fault of the gas company according to the plaintiffs’ allegation. For that fault that company alone would be responsible, as no authority or control over the trench by the traction company is alleged in the statement. If the traction company directed the plaintiffs to leave the car at a dangerous place it would be in fault and therefore liable for a breach of its duty as a carrier in that respect. But it cannot possibly be said that the fault of the two companies was one identical act or omission. The direction to leave the car did not cause the injury, and the gas company had nothing to do with it. The direct and immediate cause of the injury was the block of wood maintained over the gas company’s trench, and with that cause the traction company had nothing to do. It is perfectly manifest that the two negligent acts complained of are not the united act of both companies, nor the. same act in any sense. They are entirely separate and independent acts of each, and neither defendant had the least participation in or control over the negligent act of the other. The opinion of the learned court below contains a very clear and forcible exposition of the whole subject, and a sufficient reference to the authorities which control the question. We concur entirely with the court in the conclusion reached and in the reasoning in support of it. Judgment affirmed.