John v. Philadelphia

Opinion by Rice, P. J., This was an action of trespass brought against the city of Philadelphia and the Union Traction Company to recover damages for personal injuries sustained by the plaintiff in consequence of stepping into a hole; Avhich, it was alleged, was negligently allowed to be and remain in the pavement at a street crossing. To be more specific, the plaintiff alleged in her statement of claim: that it was the duty of the city to maintain or cause to be maintained in good and safe condition, order and repair, the streets and crossings of its several highways; that by ordinance duly passed by its councils the city imposed upon the Union Traction Company the duty of keeping certain highways, among them the highway in question, in good repair, “ under certain conditions, which ordinance Avas agreed to and accepted by said Union Traction Company;” that the defendants, neglecting and omitting their duty as aforesaid, permitted a dangerous hole or rut to be and remain in the asphalt pavement in the line of crossing from the west side of city hall to [281] the Broad street station; that said crossing was in a very busy and much traveled portion of the city; that notwithstanding this fact the defendants had “ permitted said hole to be and remain in said crossing unguarded and unprotected and in a condition likely to cause accident to pedestrians ” for a long time prior to the date of the accident, “although the officers of said city and the servants and employees of said Union Traction Company having charge of said street repair work in that district had knowledge and notice of that fact and of the existence of said hole; ” and that the plaintiff, while using the crossing, suddenly, unexpectedly and without any negligence on her part, stepped into the hole and was thrown violently to the street and injured. The defendants severally pleaded not guilty and the case went to trial upon the issues thus raised. At the conclusion of the plaintiff’s evidence, each of the defendants moved for a nonsuit, which was granted as to the Union Traction Company and refused as to the city. The trial then proceeded as if the action had been brought against the city alone, and at the conclusion of the evidence introduced by the city, was submitted to the jury upon that theory. The trial resulted in a verdict in favor of the plaintiff, and after judgment thereon the city took this appeal. No exception was taken by the city to the entry of the judgment of nonsuit in favor of the Union Traction Company, or to the refusal of the city’s motion for a nonsuit, and as to the latter it is clear that none could have been taken. Nor does it appear by the record as printed in the appellant’s paper-book that a motion was made, either by the plaintiff or the city, to set aside the nonsuit entered in favor of the Union Traction Company, that the motion was refused, and that an exception was taken to that ruling. We therefore overrule the first three specifications of error. The matter assigned for error in the fourth specification is the refusal of the court to affirm the point: “ Under all the evidence in this case your verdict should be for the city of Philadelphia, defendant.” It is not argued in support of this assignment that there was not sufficient evidence of the city’s negligence to warrant submission of the case to the jury, nor ■that it was the duty of the court to take the case from the jury [282] on the ground of the plaintiff’s contributory negligence. Both of these questions having been settled by the verdict of the jury, the sole question vve are required to consider is as to the effect of the joinder of the Union Traction Company upon the plaintiff’s right to recover. In the recent case of Wiest v. Electric Traction Company, 200 Pa. 148, Mr. Justice Potter, speaking for the Supreme Court, said: “ It is not necessary to sue all the parties guilty of committing a tort; for joint wrongdoers are liable jointly and severally, and where a joint suit is brought against a number of defendants, if the evidence shows that one of the parties was not connected with the tort, a verdict or a nonsuit as to him, is proper. A joint verdict may then be rendered against such of the defendants as are jointly liable. But, if no concert of action is shown, and, therefore, no joint tort, and the case is one of separate toft or torts, upon the part of one or of several defendants, the action is not sustained, and there should be no verdict against any one. In a suit for a joint tort there should be no recovery upon proof of one or more separate torts. When a joint tort is charged, a joint tort must be proved, in order to sustain the action. The allegation and the proof must agree in cases of torts, as in other cases.” It was also held that the effect of a misjoinder could not be cured by taking a verdict against one defendant only, although it was conceded that authority seeming to support the contrary view was not lacking. See also Dutton v. Lansdowne Borough, 198 Pa. 568. It is supposed that these two cases control the case at bar. We cannot concur in that conclusion. The question here presented did not arise in them. There the cases went to the jury without any attempt to cure the mistake by amendment, discontinuance or nolle prosequi. Here the statement of claim averred not merely the common neglect of a common duty but a neglect by the city of the duty imposed upon it, in short a several liability, and before the city was called upon to put in its defense a nonsuit was entered as to its codefendant. Practically, this left the case in the same situation, so far as the city was concerned, as if the plaintiff, with leave of the court, had amended by discontinuing the action as to the Union Traction Company. We suppose it will not be questioned that this may be done, whether the improper joinder of parties arose from a mistake of law or [283] fact. The numerous authorities cited in the appellee’s brief show that it may be, and it is so expressly declared in Dutton v. Lansdowne, supra. We think that after a fair trial on the merits the objection that the same result was reached by a different mode ought not to be ground for reversal. Judgment affirmed.