
    Bertha E. Pettit vs. Howard & Bullough American Machine Company et al.
    No. 40153
    November 20, 1918
    Por plaintiff: Easton, William & Rosenfield.
    Por defendants: James L. Jenks & E. J. Phillips.
   RESCRIPT

BARROWS, J.

Heard on demurrer to second amended first count of the declaration.

The ease has been before the present Justice tivice on demurrers and has been tried to a jury twice before other Justices. The Supreme Court has ordered a new trial on a count against the New York, Neiv Haven & Hartford Railway Company. The present standing of the case, therefore, is that the alleged negligent operation of the train is to be tried out to a jury.

Plaintiff, having formerly suffered the elimination of Howard & Bullough American Machine Company as a party defendant by the sustention of a demurrer to a count against said Company, now seeks to make said Howard & Bullough American Machine Company a party by the present count, averring a custom on the part of said Company to give warning to its business visitors of the approach of a switching engine. To this count defendant demurs on sundry grounds, upon which we now express no opinion beacuse the misjoinder of counts seems fatal to plaintiff’s position.

Plaintiff claims the right to join . a count against the Howard & Bullough American Machine Company with the present good count in the case against the New York, New Haven & Hartford Railroad Company under General Laws, 1909, Chap. 283, Sec. 20, allowing joinder of counts in case of uncertainty as to the responsible party. This statute has been interpreted by the Supreme Court several times, the latest decision being Besharian vs. Rhode Island Co., 41 R. I. 94. The statute does not permit the joinder of defendants who are alleged to have committed distinct trorts. In the present case the question standing for trial before a jury is the negligent operation of its train by the railroad; that sought to be introduced by the second count is the failure of the Howard & Bullough American Machine Company to warn plaintiff of the approach of said train. To us these seem to be separate and distinct torts.

The demurrer of the Howard & Bullough American Machine Company is therefore sustained for misjoinder of counts.  