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0. R. Co. v. Noell, 32 Gratt. 394; Nor- lision was inevitable.

Carlton's folk & W. R. Co. v. Tanner, 100_Va. chauffeur claimed, on the other 379, 41 S. E. 721; Norfolk & A. Ter- hand, that his machine had the right minal Co. v. Morris, 101 Va. 422, 44 S. E. 719.

of way, having made the long turn It is not the character of the convey

at the intersection of the streets and ance which determines the question of

started north before the taxicab common carrier, but the character of

reached Lombardy street. He also business in which it is engaged.

claimed that the taxicab was runGillingham v. Ohio River R. Co. 35 ning at an excessive rate of speed, W. Va. 588, 14 L.R.A. 798, 29 Am. St. and, although carrying the lights Rep. 827, 14 S. E. 243; Angell, Carr. § required by the city ordinance, did 524; Nashville & C. R. Co. v. Messino,

not carry the headlight prescribed 1 Sneed, 225; 5 Am. & Eng. Enc. Law, 481; Parmelee v. Lowitz, 74 Ill. 116,

by state statute. As a result of the 24 Am. Rep. 276; Parmelee v. McNulty,

collision, Boudar's head came in con19 Ill. 556; Lemon v. Chanslor, 68 Mo.

tact with the top of the taxicab, in340, 30 Am. Rep. 799; Siegrist v. Arnot, flicting severe injuries upon him for 86 Mo. 200, 56 Am. Rep. 425; Babbitt, which the jury gave him a verdict Motor Vehicles, $ 620.

for $3,000 against both defendants, Keith, P., delivered the opinion of upon which the court entered judgthe court:

ment, and both defendants applied This action was instituted in the for and obtained a writ of error. law and equity court of the city of The first error assigned is that Richmond by Thomas Boudar the court erred in overruling the against the Richmond Transfer demurrer to the declaration. The Company and E. S. Carlton to re- grounds of demurrer are as follows: cover damages for an injury sus- That the Richmond Transfer Comtained by him on the 13th day of pany is charged in the declaration November, 1914.

with being a common carrier of pas: The record discloses the following sengers, while the defendant E. S. facts: On the night of the 31st of Carlton is not so charged; that if a October, 1914, shortly after 8 o'clock, common carrier, then the Richmond Boudar was traveling as a passenger Transfer Company owed to the in a taxicab of the Richmond Trans- plaintiff the highest degree of care fer Company, from Byrd street sta- to avoid injuring him, and is liable tion, in the city of Richmond to his for the slightest negligence, but that home on Grove avenue. About the the defendant Carlton owed to the time indicated, the taxicab, operated plaintiff only ordinary care to preby a chauffeur of the Richmond vent injury to him, and is liable onTransfer Company, came to the in- ly for a breach of that duty; that tersection of Grove avenue and Lom- different degrees of care being rebardy street, going in a westwardly quired of the defendants, they candirection. At the same time an au- not be joined in one action. Secondtomobile owned by the defendant ly, that the declaration does not set E. S. Carlton, and operated by a forth a joint liability, and either dechauffeur employed by him, was go- fendant can be sued separately, but ing in an eastwardly direction, not jointly. Third, that there can until it reached the intersection of be no contribution among wrong. those streets, when it turned north doers, and they should not, thereinto Lombardy street. The chauf- fore, be joined; that this action is a feur of the taxicab claimed that he misjoinder not only of the parties, had the right of way and that the but of actions, the liability being collision which ensued was caused different as to each defendant. by the chauffeur of Carlton's auto- A misjoinder of parties cannot be mobile making a short instead of a taken advantage of

Pleadinglong turn at the intersection of the by demurrer. The demarrerstreets, and thus placing Carlton's remedy by statute minjoinder. machine in such a position that a col- (Pollard's Code, Acts 1895–96, S


different degrees of care.

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(118 Va, 521, 88 8. E. 174.) 3258a) is to move the court to abate The declaration in each count the suit or action as to the party charges that the Richmond Transimproperly joined. Riverside Cot- fer Company was engaged as a ton Mills v. Lanier, 102 Va. 159, 45 common carrier, and that the plainS. E. 875; Lee v. Mutual Reserve tiff became and was a passenger for Fund Life Asso. 97 Va. 160, 33 S. E. reward. In the charter of the com556.

pany it is provided that “the busiThe general principle is stated by ness of said company shall be the 1 Shearm. & Redf. on Negligence, transportation and carriage of pas$ 31, as follows: "If the injuries sengers and their baggage, and caused by the concurrent acts of two other persons and goods, wares, and persons are plainly separable, so merchandise to and from various that the damage caused by each can railroad stations and other points be distinguished, each would be lia- in the city of Richmond, and in the ble only for the damage which he counties of Henrico and Chestercaused; but if this is not the case, field.” all the persons who contribute to the "The distinction between a public injury by their negligence are lia- or common carrier of persons and ble, jointly and severally, for the a private or special carrier of the whole damage."

same is that it is the duty of the In Riverside Cotton Mills v. Lan- former to receive all persons who ier, supra, it is expressly held that apply for a passage.” Angell, Carr.

tort-feasors may be § 524. joindersued jointly "not

The proof is that the vehicles of withstanding there this company attended upon the demay exist a differ

pots of the various railroad comence in the degree of liability, or the panies, and held themselves out as quantum of evidence necessary to ready to receive and transport all establish such liability.”

who applied for pasIn Staunton Teleph. Co. v. Buchan- sage and were ready Carrier-taxicab an, 108 Va. 813, 62 S. E. 928, it is to pay compensation said that "cotrespassers are jointly for the service. and severally liable, and the party

To constitute one a common carinjured may sue all of them jointly, rier it is necessary that he should or two or more of them jointly, or

hold himself out to the community one of them severally, as he may see

as such. This may be done not only proper."

by advertising, etc., but by actually To the same effect see Graves's engaging in the business and purNotes on Torts, p. 1.

suing the occupation as an employThat contribution between wrong

ment." Nashville & C. R. Co. v. doers cannot be compelled does not Messino, 1 Sneed, 225. render the declaration against two

In Babbitt on Motor Vehicles, § or more wrongdoers

621, it is said: “A 'taxicab' is to Pleadingdemurrable. The

be classed with the public horsedemurrergeneral rule seems

drawn hack, or, to use the English Action against wrongdoers. to be that contribu- name, a 'hackney carriage. Such tion between wrong

vehicles are usually operated for doers cannot be compelled; but to public purposes by individuals or this rule there are numerous ex

corporations, as were the older style ceptions, with respect to which we

omnibuses and hack lines. They give no opinion. The demurrer we may be presumed in most cases to think was properly overruled. fall within the classification of car

The second assignment of error riers of passengers as described in is made on behalf of the Richmond the preceding sections." Transfer Company, and is to the To fasten upon the proprietors effect that it is not a common car- the character of carriers of pasrier.

sengers, it is immaterial whether or


. .

not they ply their vocation within Citing numerous cases in support of the limits of a town or from one the statement. town to another. Thomp. Carr. p. In Black's Law Dictionary it is 26, note 1.

said that a carrier is “one who unIn Huddy on Automobiles, at p. dertakes to transport persons or 38, it is said: “An automobile may property from place to place, by any be used as a common carrier, a pri- means of conveyance, and with or vate carrier, or a personal private without compensation.

Το conveyance. Public motor vehicles, bring a person within the descripsuch as sightseeing cars, taxicabs, tion of a common carrier, he must and others which are employed in exercise it as a public employment, carrying all persons applying for he must undertake to carry goods transportation, come within the defi- for persons generally, and he must nition that a common carrier of pas- hold himself out as ready to transsengers is one who undertakes for port goods for hire, as a business, hire to carry all persons who may not as a casual occupation. apply for passage."

A common carrier may therefore be "The common carrier of goods," defined as one who, by virtue of his says Dobie on Bailments & Carriers, calling and as a regular business, p. 300, "is one who holds himself undertakes for hire to transport perout, in the exercise of a public call- sons or commodities from place to ing, to carry goods, for hire, for place, offering his services to all whomsoever may employ him. From such as may choose to employ him this definition it appears that the and pay his charges." essential characteristics of the com- In Van Hoeffen v. Columbia Taximon carrier of goods are: (a) He cab Co. 179 Mo. App. 591, 162 S. W. must carry as a public employment 694, the St. Louis court of appeals by virtue of his general holding out;

says that "a taxicab company fol(b) he must carry for hire, and not lowing the business of transporting gratuitously." And at page 518 the persons for hire from one part of the author says: "The same considera- city to another, and holding itself tions that distinguish the common

out to carry one and all, is a common from the private carrier of goods to all the liabilities of such a carrier.

carrier of passengers, and is subject

. apply to set apart the common and

Where a traveler enters a the private carrier of passengers. taxicab, which is the vehicle of a The common carrier of pas

common carrier, the relation of passengers holds himself out to carry

senger and carrier is established. all proper persons who apply. The

and the carrier becomes bound to private carrier makes no such pro- protect him, not only from insult fession, and engages in the trans- and assault by outsiders, but from portation of passengers only by vir- its own servants."

” tue of special contract made in each We have, then, the charge in the individual case, into which contract declaration that the Richmond the private passenger carrier can Transfer Company is a common carenter or not, as he chooses. He can rier; we have the provision of its refuse, either for a bad reason or no

charter that its business shall be reason at all, to transport individ- “the transportation and carriage of uals without incurring any liability passengers and their baggage, and for such refusal."

other persons and goods, wares, and i At page 519, Dobie says:

“The merchandise to and from the various most important common carriers of

railroad stations and other points in modern times are railway and the city of Richmond, and in the steamboat companies, street rail

counties of Henrico and Chesterways (whether surface, elevated, or field;" and we have the unquestioned underground), and the proprietors proof that it holds itself out as a of omnibuses, hacks, and taxicabs." common carrier of passengers, ready (118 V a. 521, 88 8. E. 174.) to perform that service for all prop- agreed beyond this, that where two er persons who apply and are ready or more owe to another a common to make proper compensation for duty, and by a common neglect of the service.

that duty such other person is inHaving reached the conclusion jured, then there is a joint tort with that the Richmond Transfer Com- joint and several liability. The pany is a common carrier of passen- weight of authority will, we think, gers, the duty which it owes to those support the more general proposipassengers is established by law. tion that, where the negligence of The declaration denominates it a two or more persons concurs in prohigh degree of care, while as to the ducing a single, indivisible injury, defendant Carlton, it is said that he then such persons are jointly and owed only ordinary care to the plain severally liable, although there was tiff; but the fact that two defendants no common duty, common design, or are joined upon whom the law im- concert of action. In a recent New poses different degrees of duty to Jersey case (Matthews v. Delaware, the person injured is not material, L. & W. R. Co. 56 N. J. L. 34, 22 and if each of the defendants has L.R.A. 261, 27 Atl. 919, 12 Am. Neg. been guilty of negligence, it matters Cas. 285) it is said: 'If two or more not that one may have been more persons owe to another the same. negligent than the other.

duty, and by their common neglect In Riverside Cotton Mills v. Lan- of that duty he is injured, doubtless ier, 102 Va. 148, 45 S. E. 875, it is the tort is joint, and upon well-setsaid that “any number of tort-feas- tled principles each, any, or all of ors may be sued jointly if it be al- the tort-feasors may be held. But leged that all participated in the when each of two or more persons wrong. The plaintiff has his elec- owes to another a separate duty tion to sue all, or any one, and the which each wrongfully neglects to right to join all is not affected by perform, then, although the duties the fact that there may exist a dif- were diverse and disconnected, and ference in the degree of their lia- the negligence of each was without bility, or of the quantum of evidence concert, if such several neglects connecessary to establish such liabili, curred and united together in causty.” Richmond v. Gallego Mills Co. ing injury, the tort is equally joint 102 Va. 165, 45 S. E. 877; Staunton

and the tort-feasors are subject to Teleph. Co. v. Buchanan, 108 Va. joint and several liability.' By 813, 62 S. E. 928.

the weight of authority, if a person In Walton v. Miller, 109 Va. 210, is injured by a collision between the 132 Am. St. Rep. 908, 63 S. E. 458,

trains or cars of two companies, this court said: "When the negli“

then if both companies are negligence of two or more persons con

gent, both are jointly and severally curs in producing a single indivis

liable. So, if a person is injured by ible injury, then such persons are

a defect or obstruction in a public jointly and severally liable, although street, and such defect or obstructhere was no common duty, com

tion was negligently caused by some mon design, or concert of action." third party, such as a street railroad

In Cooley on Torts, 3d ed., at p. company, with respect to its track, 246, the author, continuing his dis- or a contractor doing work in the cussion of what constitutes a joint street, or by a company maintaining wrong, or a joint liability, says: electric wires, or an abutting owner, “In respect to negligent injuries, and the municipality is also neglithere is considerable difference of gent in permitting such defect to exopinion as to what constitutes joint ist or remain, then the municipality liability. No comprehensive gen- and such third party are jointly liaeral rule can be formulated which ble. But [adds the author] there is will harmonize all the authorities. a strong dissent from this view." The authorities are, perhaps, not In Colegrove v. New York & N. H.

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R. Co. 20 N. Y. 492, 75 Am. Dec. ants, although there was no common 418, it is held that "railroad cor- duty, common design, or concert of porations, both chargeable with neg- action between them. ligence causing collision of their On behalf of the defendant Carltrains, are liable to a joint action for ton, it is assigned as error that the damages for injuries sustained by a court erred in refusing to give the passenger.” And in a note to that second instruction asked for

by him, , case a number of cases are cited to which is to the following effect : the same effect.

“If the jury believe from the eviIn Matthews v. Delaware, L. & dence that the accident occurred W. R. Co. supra, the facts are stated more than an hour after sunset, and by Mr. Justice Magie as follows: that the taxicab was not properly "Matthews, the plaintiff, brought an and legally equipped with lights, and action of tort in the Essex circuit that the failure to display such lights against the defendants to recover caused the accident, then the defenddamages for an injury received in a ant Carlton is not liable, and you collision between a locomotive of the a

should find in his favor. railroad company and a car (in The statute law of this state, by which he was a passenger) of the an act passed March 17, 1910, Polrailway company. There was a ver- lard's Supp, vol. 3, p. 970, provides dict in favor of the railway com- that "every machine operated in this pany and against the railroad state shall have displayed from one company. The railroad company ob- hour after sunset to one hour before tained a rule to show cause why the sunrise at least one white light, verdict against it should not be set throwing a bright light at least 100 aside. Plaintiff obtained a rule to feet in the direction in which the show cause why the verdict in favor machine is going, and also shall exof the railway company should not hibit in the rear of the machine one be set aside."

The rules were con- red light, which shall effectually ilsolidated and certified to the court,

lumine the the number tag on the and it was held that "one injured by

rear.a collision between a locomotive of a

The petition states that the lower railroad company and a car (in which he was a passenger) of a

court refused to give this instruc

tion on the ground that the ordirailway company may maintain a joint action against both companies

nance of the city governed, and not

the state statute. if the collision was produced by the neglect of the railroad company to

Where, in the course of litigation, give notice of the approach of the

a conflict arises between the ordilocomotive, concurring with the neg

nance of a city and


the statute law of nance-condict lect of the railway company to ob


the state, the latter serve proper care in crossing the railroad track. Although such du- prevails and the former must yield, ties are diverse, and the neglect to

and we apprehend that the trial

court would not have hesitated so to perform each is separate and dis

rule. There are objections to the connected, yet, as the wrongdoing of the one company unites with that instruction requested which fully

sustain its refusal by the court. It of the other in causing injury, the tort is joint, and one or both tort presents a partial view of the evifeasors may be sued.”

dence, which, by our practice, estabWe are of opinion that the plain- lished by numerous cases, was quite tiffs in error were jointly and sev

sufficient to warrant its rejection. erally liable; that their negligence It is true that the taxicab had no concurred and pro

headlight, but it does not appear Joint debtors

duced a single, in that there was any causal connec

divisible result, and tion between the absence of the they were properly joined as defend- headlight and the collision which

automobile accident.

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