
    Alfred Jepson, Plaintiff, v. International Railway Co., Defendant.
    (Supreme Court, Erie Trial Term,
    April, 1913.)
    Negligence — action for personal injuries — corporations — street railways— city of Buffalo.
    Where defendant, the operating company and owner of all the stock of a corporation owning a street railway franchise in the city of Buffalo, runs ears over the line under the so-called “ Milbum agreement” which merely provides that the roads may “ run their cars on each other’s lines interchangeably ” both corporations are jointly and severally liable for the wrongful acts of defendant’s employees in the operation of the road.
    In an action against defendant for personal injuries caused by the wrongful acts of its employees, a judgment in favor of the other corporation in an action against it to recover for the same injuries is not a bar.
    A street railway company which creates a dangerous situation by piling newspapers dropped from one of its cars at a street corner is liable to one injured thereby as for a nuisance; but where such condition arises from other causes its failure to remove • the obstacle involves a question of negligence.
    Motion for a new trial after verdict for plaintiff.
    Roscoe R. Mitchell, for motion.
    Hamilton Ward, opposed.
   Pound, J.

This is an action to recover damages for personal injuries sustained by plaintiff through the negligence of defendant. Plaintiff was thrown from the automobile in which he was riding very early on a Sunday morning, when the automobile collided with bundles of Sunday morning newspapers which had been dropped from a Main Street car and piled in Main street, at the corner of Jefferson street, in Buffalo, by the employees of defendant, to be picked up by other employees of defendant and put on the Jefferson Street car and taken to their destination, as had been done regularly for years. It is undisputed that the pile of newspapers thus placed in the street temporarily obstructed that portion of the highway which they occupied. Ordinarily this was for a brief space of time, but, on the Sunday in question, there was a delay in the Jefferson street connection and the bundles remained longer than usual.

The jury rendered a verdict in favor of the plaintiff.

Plaintiff had previously sued the Crosstown Street Railroad to recover damages for the same injuries, on the theory that the bundles of newspapers so piled in the street constituted a nuisance. The jury rendered a verdict of no cause of action, a motion for a new trial was denied, judgment was entered in favor of the defendant and no appeal was taken. The facts are fully set forth in the opinion of Mr. Justice Brown in Jepson v. Crosstown St. R. Co., 72 Misc. Rep. 103, 106-108.

Defendant pleads the former judgment as a bar to this action.

The Crosstown owns the franchise to operate the street railroad at the place of the accident, but the International is the operating company which owns all the stock of the Crosstown and runs the cars over the line under the so-called Milburn agreement,” solely and not as authorized lessee.

The question is whether the judgment in favor of the Crosstown in the former action is an adjudication of the liability- of the International in this action.

It is undisputed that both companies are jointly and severally liable for the wrongful acts of the employees of the International in the operation of the road. Abbott v. Johnstown, G. & K. R. R. Co., 80 N. Y. 27.

The plaintiff urges that, as the two companies are liable jointly and severally as joint tort feasors, a judgment in favor of one is not a bar to a judgment against the other, and that plaintiff has lost his remedy against the Crosstown alone. Russell v. McCall, 141 N. Y. 437-452.

The defendant contends that there is no joint act of operating, but only a joint liability for the single act; that the Crosstown operates the road in law, so far as legal liability is concerned, because it owns the franchise and cannot escape liability by allowing another company to operate the cars, but that the International operates the road in fact; that it is as though the relation of principal and agent existed between the Crosstown and the International; that the maxim respondeat superior applies; that, if the principal is not liable to plaintiff for the acts of the agent as such, the agent cannot be liable for such acts, and that the former judgment holds that the principal is not liable and is a bar to this action.

If the International is the agent of the Crosstown in operating the road, an act done by the servants of the International, as imposing liability upon the Crosstown, is analogous to the act of the servant driver of an automobile. His negligence is the negligence of the owner, if done in the course of his employment. If the principal is exonerated from liability for the negligent acts of the agent, done for him, by reason of the contributory negligence of the injured person, it would seem that the agent must also be relieved from liability for the same acts. Featherston v. Newburgh & C. T. Co., 71 Hun, 109.

But a very recent decision has held that, where both owner and driver are sued jointly, a verdict against the owner for the driver’s acts and in favor of the driver for the same acts is “ unseemly ” but not void. Pangburn v. Buick Motor Co., 151 App. Div. 756.

It would follow that, if the liability of principal and agent to the person injured for the agent’s negligent acts is several as well as joint, to the extent that, in a joint action, the agent may be excused and the principal held, the agent has no legal cause for complaint because the injured one has first failed in an attempt to charge the principal in a separate action. The agent’s several liability still remains to be tried out and he cannot take advantage of the former judgment as a defense on his part.

But the Crosstown is not, in any legal sense, the principal and the International the agent. The analogy may'exist in fact, but the two companies in law operate the street railroad jointly and severally and not one for the other. The public has no concern in the internal affairs of the companies, nor will a sound public policy permit this defendant to show the books which are kept between them as a defense to its own negligent act. The “ Milburn agreement ” merely provides that the roads may “ run their cars on each other’s lines interchangeably.” Each admitted in its answer that it operated the road. So defendant remains liable primarily and severally. Russell v. McCall, 141 N. Y. 452.

Plaintiff urges the distinction between nuisance and negligence as a further ground for sustaining this verdict. The distinction is thus stated: “ Where a railroad company * * * is the creator of a danger-out situation it is liable to a person injured as for a nuisance, but where such condition arises from other causes the failure to remove the obstacle involves a question of negligence.” Hayes v. Brooklyn Heights R. R. Co., 200 N. Y. 183.

But here the dangerous situation was created by the defendant, not by the mere temporary placing of the bundles in the street, but by its failure to guard or remove the obstacle which its own act had placed in the highway. That act is attributable to the Crosstown, and suing for negligence instead of nuisance merely opens the defense of plaintiff’s lack of freedom from contributory negligence, which is nothing more than plaintiff’s improper use of the highway, as submitted to the jury in the Crosstown case. I think that the causes of action are identical. See Justice Brown’s opinion, supra. But, for the reasons above stated, motion for new trial denied.

Motion denied.  