author: By the Court. Bosworth, J. Woodruff, J. (Dissenting.)

text:
    Colegrove v. The New York and Harlem Railroad Company, and The New York and New Haven Railroad Company.
    The complaint states, as a cause of action, that the plaintiff, while a passenger in the ears of the Harlem Company, was injured by such negligent management by each company of its train of cars, that the two trains came in collision, and that by such collision the injury was inflicted. Each company answered separately, denying negligence on its part.
    The jury found that the collision which caused the injury was produced by the concurring negligence of the two corppanies.

      Weld, if the cause of action against each company is, on tj^e facts stated, several and not joint, the misjoinder is cured by answering an,d by omitting to demur, and neither bad a light to a separate trial; such defect appearing on the face of the complaint.
    The plaintiff was injured by the collision; a single and forcible act, caused directly by the joint'action of the two, and without such concurring action or common negligence, there might have been no collision and no injury. For an injury thus caused, trespass would lie. All who concur in a forcible and wrongful act, which directly injures, may be sued jointly. Neither defendant, though separately sued, would be exonerated from any part of the damages resulting from an injury thus caused.
    The negligence of the Harlem Company cannot be imputed to the plaintiff, in such sense, as to exempt the Hew Haven Company from liability to him. The Harlem car was not the carriage of the plaintiff, nor one subject to his control, or i under the management of his servants.
    Although a defendant moves for a nonsuit at the close of the plaintiff’s evidence, and on such evidence alone, is entitled to it, and excepts to a decision denying the motion, yet, if instead of standing on the exception he gives evidence, and a verdict ultimately passes against him, on sufficient evidence and under a proper charge, his exception will not entitle him to a new trial. It is waived by giving evidence to the merits sufficient to establish his liability.
    The same is true of an exception to a decision overruling an offer of the defendant to demur to the plaintiff’s evidence.
    The fact that the plaintiff stood on the platform of the Harlem car at the time of the collision, is no answer to his action against that company, no notice being at the time posted up as required by section 46 of the Laws of 1860, p. 234. He owed no duty to the Hew Haven Company, which made it negligent in him, as between himself and that company to be there, in view of the possibility of coming in collision with one of the trains of that company, which, according to its regulations, had no right to be on the track on that day, and which there was not the slightest reason to suppose might be on it.
    If a passenger in one of two trains, owned and run by different companies, is injured by their coming in collision, and such collision would not have occurred if both companies had exercised that ordinary care which they owed to all persons travelling on the road, and if the plaintiff, as between himself and both companies, was lawfully where he was, and if he was guilty of no negligence in not anticipating such a collision, and in not seeking a scat with a view to its possible occurrence, the fact that he was on the platform of a car, when injured by such a collision, is no bar to his right of action against either company.
    On such a state of facts, and when no negligence can be imputed to the plaintiff, except the mere act of riding upon the platform, it is not erroneous, or calculated to mislead a jury, to instruct them that the general rule is, that the negligence of a plaintiff which goes to excuse the defendant’s negligence, must be such negligence as contributed to the accident which caused the injury.
    'JV'oodruff, J., dissenting, held, that, on the facts of this case, an action would not lie against the defendants jointly. The collision is not the cause of action and ground of liability, but the negligence which caused it. Each defendant is liable for the fault of its own servants, and for that only. The companies were acting wholly independently of each other, and were not discharging any compon obligation to the plaintiff, and violated no duty which they owed him in common. The culpa causarn is separate, in respect to each defendant, and whether injury results concurrently, or otherwise, cannot change their relation to each other, or to the plaintiff.
    The liability of either defendant is not founded in any act of such defendant, but in negligence only, and such negligence in nowise tended to produce negligence in the other. A joint verdict against the defendants, on the facts of this cáse, should not be sustained.
    The Judge erred, in charging that the general rule is, that the negligence of a plaintiff that goes to excuse the defendants, must be such negligence as contributed to the accident, that caused the injury. Cases specified, in which such a statement of the rule of law would be erroneous. The true inquiry is, whether the plaintiff’s injury is attributable, in part, to his own carelessness; whether his negligence contributed to his hurt ?
    The charge in this respect was erroneous and prejudicial to both defendants, and particularly so to the Hew Haven Company. A verdict and judgment against the defendants jointly are not proper in this action, and the verdifjt should he set aside, and a new trial ordered,
    (Before Duer, Bosworth and Woodruff, J.J.)
    Dec. 2, 1856;
    Feb. 21, 1857.
    This action came before the court, at General Term, on a verdict for the plaintiff, subject to the opinion of the court at General Term, on the questions of law presented by exceptions taken at the trial. It was tried before Mr. Justice Slosson and a jury, on the 5th of December, 1855.
    The action is brought against both defendants, to recover dam? ages for injuries sustained by the plaintiff, while a passenger on the cars of the Harlem Company, from a collision between the trains of the two companies, occurring about six o’clock, A. M., on the 26th of November, 1854, at ab.out Fifty-eighth street, in the city of New York. Both trains were going in the same direction, and into the city, the train of the New Haven Company, being the forward train. That train was a freight train, and was due at the Centre-street depot at fifteen minutes past eleven, p. m., of the preceding day. It had been delayed by a freight train of the Harlem Company, on the track, due in New York city subsequently to the New Haven train, but how much of its delay had been thus caused did not distinctly appear. The train, in which the plaintiff was a passenger, left White Plains at five minutes past five, A. M., that morning, without brakemen, five o’clock being its regular time to leave. The plaintiff was a commuter, a daily passenger in the cars of the Harlem Company, and, on the morning in question, got uptin the cars at 125th street, and upon the rear platform of the first car of the train. There were unoccupied seats in the last two cars of. the train, but none in the first car, and the plaintiff did not have time to find a seat before the train started.
    The complaint charges that a collision occurred between the two trains, by reason of the agents of each company managing its train “ so negligently, recklessly, carelessly, and wrongfully, and without the exercise of ordinary or proper prudence, vigilance, or precaution,” that the train of the Harlem Company ran into that of the New Haven Company, whereby the plaintiff, without any default on his part, was knocked down and his ankle fractured, and was otherwise injured, the particulars whereof were specified.
    Each defendant answered separately, denying all negligence, and charging all negligence causing the collision to the other company, and charging that it was an unnecessary act, and culpable negligence in the plaintiff, to be on the platform of the Harlem car, and that such negligence was a bar to his right to recover.
    When the plaintiff had concluded the evidence on his part, and rested his case:
    . Mr. Sandford, the counsel for the New York and Harlem Railroad Company, then moved to dismiss the complaint, on the ground,—
    1. That the plaintiff had failed to show any negligence by the New York and Harlem Railroad Company; and
    2. That the plaintiff has shown negligence on his part, ip standing on the platform, which contributed to produce the injury alleged to have been sustained by him.

      Mr. Noyes, on behalf of the defendants, the New York and New Haven Railroad Copipany, moved to dismiss the complaint, on the ground,—
    1. That no joint action could be maintained against the two companies, the defendants in this action, without proof of a joint act of pegligence or concurrence in such joint act, which was not pretended.
    2. That no action could be sustained against the New York and New Haven Railroad Company, because the plaintiff was guilty of negligence in being on the platform of the Harlem cars, when there was room inside, in violation of the statute applicable to that company,' and of its rules and notices.
    3. That there was no proof of negligence against the New Haven Railroad Company, which contributed to the injury.
    The court denied the motions, and the counsel for the defendants severally, duly excepted.

      The plaintiff was then permitted to give some further evidence; that being done he again rested.
    The counsel of the Harlem Company then stated their defence to be, that the collision was caused wholly by the negligence of the New Haven Company.
    Mr. Noyes, on behalf of the defendants, the New York and New Haven Eailroad Company, then moved for a separate trial for the defendants, the New York and New Haven Eailroad Company, as provided in the 258th section of the Code, because the defences of the two companies were entirely distinct, and each consisted in imputing negligence to.the other to some extent, and a joint trial was calculated to prejudice their rights.
    The court denied the motion, and the counsel of the New Haven Eailroad Company excepted.
    Mr. Noyes then stated orally that he offered to demur to the plaintiff’s evidence, as against the New York and New Haven Eailroad Company, and proposed to put in a formal written demurrer. The court overruled the offer, and the counsel excepted.
    The court then directed the counsel for the New York and New Haven Eailroad Company to open the case on their behalf, when the counsel for the Harlem Eailroad Company had closed his evidence, to which direction the counsel for the New York and New Haven Eailroad Company excepted.
    The Harlem Company then proceeded to examine witnesses on their behalf. When their examination was concluded, the counsel for the New Haven Company opened their defence, and examined witnesses on their part.
    When the whole testimony had been given, the following pro* ceedings, as the case states, were had.
    Mr. Sandford, for the Harlem Eailroad Company, then moved to dismiss the complaint, on the following grounds:
    1st. That the -plaintiff was himself guilty of negligence, contribr uting to the injury, by standing on the platform.
    2d. That no negligence of the Harlem Company was proved.
    Mr. Noyes moved to dismiss the complaint, as against the New York and New Haven Eailroad Company, for the same reasons as before stated.
    The court denied both motions, and the counsel for the defendants duly excepted.

      The counsel for the defendants, the New York and New Haven Railroad Company requested the court to charge:
    1. If the jury believe, from the evidence, that the plaintiff knew of the regulations against standing on the platform, and that he stood on the platform, when there was either sitting or standing room inside any of the passenger cars composing the train, and his thus standing there contributed to the injury which he received, he cannot recover.
    2. If the jury believe, from the evidence, that the printed regulations against standing on the platform were posted up at the time when the plaintiff took his passage, in a conspicuous place inside the passenger cars, and that there was room inside any of those cars for the proper accommodation of the plaintiff either sitting or standing, the plaintiff cannot recover.
    3. If the jury believe, from the evidence, that any negligence of the plaintiff, in standing on the platform, contributed to the injury received by him, he cannot recover.
    The counsel for the New York and Harlem Railroad Company requested the court to charge as follows:
    1. That the New York and New Haven Railroad Company-had the right, by law, to run their cars and engines over the Harlem Road on this island, and the Harlem Company is not liable for any violation of the rules of the Harlem Company by the New Haven Company.
    2. That the defendants, the New York and Harlem Railroad Company, are not liable, unless it is proved that some negligence of that company, or its agents, occasioned plaintiff’s accident.
    3. That the burden of proof, to showthat plaintiff’s injury was occasioned by negligence of the defendants, rests upon the plaintiff.
    4. That the defendants are not liable if the inj ury was occasioned, in whole or in part, by the negligence of the plaintiff.
    5. That standing on the platform of a car is negligence, and declared by law to be negligence, if there was room for the plaintiff inside of the cars, and the notice up.
    6. That when the defendants prove that notices were habitually up in the cars for a series of years, so that daily riders always saw them, before and after the accident, the burden of proof is thrown on the plaintiff to show that they were not up on that day.
    7. That it was the duty of the plaintiff to take his seat in the cars at the place he got on board, if there were then vacant seats in the train, and he had that knowledge of the usual condition of the train, to know where to find the vacant seats.
    8. If the injury was produced in part by the negligence of the plaintiff, and in part by the negligence of either or both defendants, the plaintiff cannot recover.
    The court then charged the jury as follows:
    This action is brought against the Harlem Railroad Company and the Hew Haven Railroad Company jointly; and in that respect it is a peculiar case. The Hew Haven Company was authorized by a statute of our state, passed May 11th, 1846, to continue their road from the dividing line of the states of Connecticut and Hew York, through Westchester county, to the Hew York and Harlem Company’s line of road in said county, and to connect it with the Harlem Road at or near Williams’ Bridge, and then to carry and transport passengers and property over that part of the route. And by a subsequent statute, the Hew Haven Company were authorized to use the road already constructed by the Harlem Company, from the point of junction of the two roads, at or near Williams’ Bridge, down to this city, and to transport passengers over that part of the road, under such regulations and rules as the two companies might agree upon.
    The two companies made an arrangement by which it was agreed, that they should run their cars on the common road, under the rules and regulations adopted by the Harlem Company.
    The plaintiff' in this action was a passenger on the Harlem train, and his contract was made with the Harlem Company, and not with the Hew Haven Company.
    Thus, you will perceive, at the very outset of tjiis case, the question is presented, how far this plaintiff, who had made his contract with the Harlem Company, can hold bofh companies jointly liable for this injury. This is a novel question, and it is one which I deem it right to reserve for the consideration of the court above. But, in order that there may be no embarrassment -with regard to the disposition of the case here, and for the purposes of this trial, I shall instruct you, that if you find yegligepce on the part of both of these defendants, the plaintiff will be entitled to recover against them jointly for that negligence.
    [To this the defendants’ counsel severally excepted.]

      The question of the defendants’ liability, on the ground of negligence, will be left wholly to you, and you will be at liberty to find them both guilty, or only one guilty, or neither guilty, as you may think the evidence will warrant. Therefore the case will go to you disembarrassed of the question of the propriety of both companies being united as defendants in this action, and you will address yourselves to the consideration of the case as though no such question existed.
    The first question to be disposed of is, whether the plaintiff, in standing upon the platform, was himself guilty of such negligence as exempts the defendants from liability ? The general rule is, that where a party by his own negligence contributes to bring about the occurrence by which the injury is effected, he cannot recover. [To this the defendants’ counsel excepted.] Now, standing upon the platform of the car could, in itself, have had no effect in producing the collision by which this injury was effected. Of itself, therefore, it would be no defence to the company, in case of an accident occurring. I mean the mere fact of standing upon the platform of a car. [To this the defendants’ counsel excepted.] But the defendants rely upon the provisions of the Statute of 1850, called the “ General Railroad Act,” in which was incorporated a provision to this effect :
    “ Sec. 46. In case any passenger, on any railroad, shall be injured while on the platform of a car, or in any baggage room or freight car, in violation of the printed regulations of the company, posted up, at the time, in a conspicuous place, inside its passenger cars then in the train, the company shall not be liable for the injury, provided said company at the time furnished room inside of its passenger cars, sufficient for the proper accommodation of passengers.”
    The defendants contend that this is absolute, and that the mere fact of being upon the platform while accommodation, whether sitting or standing, existed in any car of the train, (the notice required • by the statute being posted up,) would, of itself, exempt the defendants from liability, whatever may have been the degree of their own negligence. I do not so construe the statute., [To this the defendants’ counsel excepted.] Such a construction throws the whole responsibility upon the passenger. The statute was intended, it is true, in part at least, for the benefit of the companies; but it must receive a reasonable construction. Independent of this statute, a railroad company should be liable for the safety of a passenger whom it had undertaken to convey, wherever it might see fit to place'him,' or wherever he might see fit to place himself, upon the cars, always provided his so placing himself was not an act of negligence contributing to the injury or disaster. [To this the defendants’ counsel excepted.] To guard against the recklessness and wilfulness of passengers in selecting places of danger, and both for the protection of the passenger and the company, the statute steps in and says that the company shall not be liable in the case of a passenger who, in violation of the printed regulations posted up in the cars, receives an injury while standing upon the platform.
    These regulations, you will observe, are to be placed in a conspicuous place in the interior of the cars, and the statute evidently contemplated the case of a passenger leaving the interior of the cars and wilfully standing upon the outside platform. But, apart from this, the statute was not intended to, and does not, exempt the company from the observance of those rules and regulation, police, and prudent management of the business of transportation, which are essential to the safety of the passenger, and to the effectual carrying out of the policy of the statute. The company has no right to permit its cars to be overcrowded, or to permit more persons to accumulate upon one particular car than that car can conveniently accommodate in the inside; and by “ convenient accommodation” I mean what the statute calls “ proper accommodationand that is, that accommodation which is furnished by seats in the inside of the cars! The company has no right to permit a crowd at a station to rush into a car which cannot thus accommodate them, and then to start with them upon the journey without giving them an opportunity to seek for seats in the other cars if there are none in the car into which they first get. If a railroad company does do this —if it permits any number, without restriction, to crowd into any one car, without regard to the means of accommodation within the car, to stand upon the platform, and no opportunity is allowed them, before the cars are in motion, to seek for accommodation in other parts of the train—it cannot claim the exemption intended by this statute. [To this the defendants’ counsel excepted.] Such persons, though in a place of danger, are there by the consent of the company, and lawfully there; and the obligation to transport them safely recurs in its full force, notwithstanding the printed notice posted up which forbids the passengers to occupy such a position. It is virtually a waiver by the company of the benefit of the statute thus to permit passengers to crowd a car, so as from necessity to force some upon a platform, without giving them the opportunity to find accommodation in other parts of the train before it is in motion. The statute does not exempt the company from the necessity of enforcing its own rules. It will not extend its protection to a company which wantonly or heedlessly permits passengers thus to commit the abuse against which the statute was intended to guard, nor is it an answer to say that the passenger, by seeking other cars than the one in which he happens to be, might find accommodation, unless he has time to do this before the cars are in motion. No passenger is bound, while the train is in progress, to leave his position in one car, though that position be upon the platform, to go to another car merely to seek a safer place. [To this the defendants’ counsel excepted.] He would, by that very act, expose himself to a greater danger. Nor is it an answer to say, that there is standing room in the aisle of the car. [To this the defendants’ counsel excepted.] The aisle is not a place for passengers. The safety, comfort, and convenience of all the passengers require it to be kept perfectly unobstructed. No passenger can be compelled to stand there, and no passenger should ever be permitted to do so. The original fault in such a case is in the company, who, by its agent, the conductor, permits the passenger to get into a car where there is no sitting accommodation for him. The matter is perfectly susceptible of arrangement by the company. At every station means can be employed to direct passengers to vacant seats. Time should be taken for this purpose, and the train should never start till every passenger is provided with a seat. Apart from such direction, a passenger is under no legal obligation to get into one car rather than another ; but every passenger is obliged to submit to all proper and reasonable regulations of the company; and the one that I speak of would be eminently such a one. A passenger would have no more right to get upon a car already filled with passengers, if forbidden by the conductor, than the company has a right to take more passengers than it can conveniently accommodate with seats. If the passenger, notwithstanding that he is thus forbidden, persists in getting upon the platform, he is there unlawfully, and in case of an accident, the statute shields the company. If the company undertake to carry in any one car more than they can accommodate with seats, so that some are, from necessity, forced to stand upon the platform, and have no opportunity before the train is under way to find seats in another- car, such persons are there by permission of the company, and are lawfully there; and the company can claim no exemption under the statute, no matter how conspicuously their notices may be posted in the interior of the cars. [To this the defendants’ counsel excepted.]
    If a passenger is received into a car where there is sitting accommodation, and then voluntarily deserts his place in the interior, and without permission or authority from the conductor, stands upon the platform, and there receives an injury, he has no redress against the company, though-the injury be the result of negligence upon the part of the company, provided the notices required by the statute were conspicuously placed in the interior of the car at the time of the disaster. There is no evidence in the present case to show that the plaintiff was forbidden by the conductor to take the platform of the first car at the station at which he got upon it, or that any one car was designated as one in which he could find sitting accommodation. There is no pretence that there was sitting room in the first car, the one he got upon. If there was no opportunity given to him to look for a seat in one of the rear cars before the train was put in motion, then the plaintiff was not obliged to leave the platform; but, being there by permission, he was lawfully there, and entitled to all the protection of a seated passenger in the inside. [To this the defendants’ counsel excepted.]
    If you find that he had this time and opportunity, that is, that after getting upon the car he had time before the train was in motion to have sought for a seat in the rear cars, and if you further find that the notices prohibiting the standing upon the platform were posted up in the inside of the cars at the time he took his passage, and you shall find that there was accommodation in either of the rear cars, then his remaining upon the platform being purely voluntary, he has lost his redress against the company, and your verdict must be for the defendants. [To this the defendants’ counsel excepted.] If you find the contrary, then the next question for you to consider will be that of the negligence of the defendants. The defendants are not liable if the catastrophe was the result of inevitable force or accident. The defendants are liable only in case the disaster was produced by their own negli gence. Negligence having no connection with the disaster is not to be regarded in this action. These defendants can be held jointly liable only in case the negligence was joint. If either was innocent of any fault contributing to the disaster, your verdict must be for that defendant. If both were innocent, your verdict must be for both. Both companies were in the lawful possession of the same road, and each entitled to run their cars over it, and both were running under the same rules and regulations; and though one company is not responsible for the wrongful act of the other whereby an injury is inflicted, without its agency, upon a passenger, both are responsible where the injury is the result of a mutuel negligence. [To this the defendants’ counsel excepted.] This is the law of this case for the purposes of this action, until the question which is to be reserved shall be settled by the court in full bench. The law exacts the greatest possible care and diligence on the part of a railroad company. [To this the defendants’ counsel excepted.] This extends to the employment of proper servants and agents, and for whose conduct, skill, and diligence, and capacity for the various stations to which they are assigned, the company are liable.
    The obligation safely to transport passengers, does not rest, at least wholly, on the consideration of the payment of fare, or the contract of hire between the passenger and the company, but upon the moral duty which imposes upon one who undertakes a service the obligation to perform it, and on the further obligation which rests upon every man and corporation, so to conduct his affairs as not to injure others; so that a person lawfully upon a railroad train, or other conveyance, though an invited guest, and having paid no fare, is entitled to be safely conveyed. The principle of this rule is, under the circumstances, equally applicable to both these companies, so that neither can do an act by which a passenger upon the train of the other should suffer injury, without liability to such passenger. These defendants mutually claim, that if there was any fault, it was not its own, but that of the other company. This they have a right to do; and you have a right to discriminate, and say upon which the fault lies, if it does not rest on both. You may acquit either, if in your opinion the evidence warrants it.
    I shall not recapitulate the evidence. You have the elements of judging all before you. But there are certain leading outlines of the testimony to which it is proper I should call your attention. Special attention is to be paid to the regulations of the time-table, as to the time of starting and the detention of the cars. The companies were hound to run in conformity to these tables. This is a legal obligation upon their part; they are bound to observe the time which they have prescribed. You must judge where the fault originated, by which this collision took place. The New Haven freight train (which is the train with which the passenger train, upon which the plaintiff was, came into collision), it appears, was due at Centre street at a quarter past eleven o’clock of the evening previous to the accident. The Harlem freight train was due at 27th street at half-past twelve o’clock,—after the New Haven freight train. Yet we find that the latter, the New Haven freight train, was behind the former, the Harlem freight train, and was detained at Yorkville by the accident to the former, until within a few minutes before the arrival of the passenger train, in which the plaintiff was. Now, how was this? Was the New Haven freight train thus detained by inevitable accident? If not, it was out of its place, and in fault. [To this the defendants’ counsel excepted.] You are to determine whether this freight train might not have reached the city in proper time, and whether its not doing so was the result of its own negligence. If it had reached this city according to its time, there would, so far as the evidence shows, have been no collision; because the evidence is, that the Harlem freight train which preceded it, did reach the city without accident, and the collision was with this New Haven freight train. Then again, you must determine, whether if the New Haven freight train is excusable for being out of time, it was guilty of negligence after it got into its position behind the Harlem freight train; to wit, at and after leaving Yorkville. This inquiry, of course, embraces all those points of vigilance, precaution, and prudence, upon which counsel have so fully and ably discussed the matter before you. Had the New Haven freight train the necessary lights hung out behind it, as prescribed by the regulations of the road? Did it use the precautions which by the rules of the road it was bound to use ?
    [The Judge here adverted to, and read to the jury, rules 1, 4, 5, 8, 14, 10, as contained in the time-table hereto annexed.]
    You will have to determine whether or not these various precautions have been neglected, or whether these rules have been violated; and if, upon a careful consideration of the testimony, you should be satisfied that the New Haven freight train was guilty of a violation of any of these rules, provided the case called for the observance of them; that is, if this was a contingency in which either one of those rules ought to have been observed by the conductor of the New Haven freight train, and that they were not observed, then the New Haven freight train in that particular would be guilty of negligence.

      Mr. Noyes.—I would ask your honor to charge, that the violation of any rule cannot make the defendants liable unless that violation contributed to the accident.

      The Court.—I have already stated to you, gentlemen, that if you find there was neglect upon the part of the New Haven train in observing these regulations, you must be satisfied that the neglect contributed to bring about this disaster—this collision. A neglect of any of the rules of the company which had no bearing upon this collision, you have nothing to do with. The plaintiff can only recover damages here against either of these companies, in case he has proved, or the evidence proves to your satisfaction, that both or either of the companies was guilty of such negligence as produced this collision. Then, as to the Harlem passenger train. Was the absence of the brakeman sufficiently supplied by the conductor? If not, it was negligence to have left White Plains without the brakeman, if in your judgment this absence of the brakeman contributed to produce the disaster. If the New Haven freight train had red lights out, was it or not the fault of the engineer and firemen of the Harlem passenger train, that they were not seen? There is a great deal of evidence bearing upon that question, as to the fact of the New Haven freight train having the necessary lights upon the rear of its car, and as to the extent to which such lights will be seen upon a foggy morning; and the evidence of Mr. Green I commend to your very careful consideration. You must consider whether the fact of his taking that large red light and running back eighty rods, so as to give notice to this passenger train coming down, has been sufficiently proved. If it is true that the conductor stood upon the platform of the rear car of the New Haven train, and waved that red light, and then sprung off and ran back sixty or eighty yards, waiving that light until he met the Harlem passenger car, it is then to be explained how it was that the engineer and firemen of the passenger train did not observe it.
    If you are satisfied of the truth of the statement of Green, how could it be that the engineer and fireman of this down-coming train did not see the lamp ; and if you are satisfied that if they had seen this light they could have brought up and stopped the progress of the train in timq to prevent the collision, and their not doing so is not in your opinion excused, then that negligence contributed to the catastrophe, and was a fault for which the company are liable, because the company are bound to have men upon their cars who will exercise all that prudence, caution, foresight, and care over the road, that the position in which they may be at the particular time calls for; and the position of engineer and fireman upon the train as lookouts is very important, and necessary for the safety of the train, perhaps quite as much as the ordinary operations of a fireman or engineer in the management of the engine itself. If the being out of time is excusable as respects the New Haven freight train, was the detention of the Harlem freight train at Yorkville excusable? It was owing to a breaking of the switch that this train was thrown out of its gear, and upon the wrong track. In regard to this point, this was on the Harlem Company’s own road, and the company are bound to see that their road was in proper condition, and they are responsible for such a defective condition of the switch as would subject it to breakage, unless it resulted from such a cause as it would be impossible for them to control. You will have to determine whether this getting off of the track, which was the effective cause why all this detention and the collision took place, was an inevitable accident. You will bear in mind the rules regulating freight trains in respect to keeping out of the way of passenger trains; and you will apply the same rules to this as to the other company, and determine in the same manner the question of their negligence. You will determine upon the whole evidence, and whether there be any fault, and where it lies, and regulate your verdict accordingly. Should you come to the conclusion that the defendants, both or either, are guilty of a negligence by which this disaster was occasioned, the only remaining question will be as to the damages. Upon this point, gentlemen, the rule is simple. You will take into consideration the nature of the plaintiff’s occupation ; the length of time he was prevented from labor; the amount of wages he lost and is still losing; the nature of his injury, and the bodily sufferings to which he was subjected. For this bodily suffering and pain, you will give him a fair and liberal compensation. You will consider the nature of the injury, also the probabilities of the duration of its effects. The only evidence is that of his physician, Dr. Wright, who says, that the injury is not permanent ; that the fractured limb will be as well in a few months as before the injury; and that in that time it will lose its susceptibility to change of atmosphere. You are bound, as this is the only evidence given as to the probable duration of this injury, to treat it as an injury not shown to be a permanent one.
    The whole case, therefore, is before you. The first question, as to the plaintiff’s negligence, I have charged you upon. I repeat, for the purpose merely of refreshing your minds as to the rules, that the plaintiff, (there being no evidence that he was prevented or forbidden by the conductor to get upon this platform,) if after he got upon the train and found that the first car had no accommodation for him, he had time before the train was in motion, to have gone into the rear cars to have found accommodation, and if you are satisfied that there was accommodation for him, (the notices being posted up,) then the plaintiff was guilty of that negligence which, according to the rules of law, would prevent him recovering against these companies. If, upon the contrary, you should find that he, not having been forbidden to get upon the platform of the first car, had no time before the train was in motion to seek for a seat elsewhere, then he was there lawfully and the company is not entitled to exemption from liability, merely by virtue of the provisions of the statute which exempts the liabilities of companies in certain cases. [To this the defendants’ counsel excepted.] Then again, as to the liability of the defendants. There must be proved to have been a negligence upon their parts, jointly or of either, which brought about and produced this disaster, and all the negligence which you are satisfied that they were guilty of in other respects, is to be disregarded and not taken into account by you. If you find that one was guilty and the other not, you will find in favor of the one that was not. If you find that both were culpable, you will render your verdict against both. In damages, you will allow the plaintiff for the loss of time during which he was prevented attending to his business, from the date of the disaster down to March, 1855, excluding Sundays, and you will also give him the extra one shilling which he would have earned, according to the testimony of his employer, had he not met with this accident. But you will give him, in addition to the loss of wages, the extra one shilling which, as I just observed, he now loses in consequence of the inability, superinduced by this accident, to earn the full amount which he earned before it; and you will consider also, what would be a reasonable time (treating the injury as not permanent) during which to continue this extra one shilling compensation, and then the only one other item of damage which you will be justified in giving, will be a reasonable compensation for his sufferings during the period while he was confined with this injury, and for his present sufferings, if any you suppose there to be.
    Give him nothing extravagant, vindictive, or excessive in damages, but what in cool and fair judgment you yourselves, were you individually responsible here, would be willing to confess was a fair and just compensation.
    General Sandford, of counsel for the Harlem Company, here submitted the following propositions, and requested the Judge to charge the same:
    1. That the New Haven Company had the right, by law, to run their cars and engines over the Harlem road on this island, and the Harlem Company is not liable for any violation of the rules of the Harlem Company by the New Haven Company.
    2. That the defendants, the New York and Harlem Company, are not liable, unless it is proved that some negligence of that company or its agents, occasioned plaintiff’s accident.
    3. That the burden of proof to show that the plaintiff’s injury was occasioned by negligence of the defendants, rests upon the plaintiff.

      4. That the defendants are not liable if the injury was occasioned in whole or in part by the negligence of the plaintiff.
    5. That standing on the platform of a car is negligence, and declared by law to be negligence, if there was room for him inside of the cars, and the notice up.
    6. That when the defendants prove that notices were habitually up in the cars for a series of years, so that daily riders always saw them, before and after the accident, the burden of proof is thrown on the plaintiff to show that they were not up that day.
    7. That it was the duty of the plaintiff to take his seat in the cars at the place he got on board, if there were then vacant seats in the train, and he had that knowledge of the usual condition of the train to know where to find the vacant seats.
    8. If the injury was produced in part by the negligence of the plaintiff, and in part by the negligence of either or both defendants, the plaintiff cannot recover.
    He excepted to so much of the charge as related to the construction given by the court to the section of the act against riding on the platform, and its application to the facts of this case.
    Mr. Hoyes, of counsel for the Hew Haven Company, took the like exception, and submitted the like propositions to be charged with those submitted by General Sandford, with the further request to charge, that if the plaintiff knew, when he got into the Harlem cars, that there was usually room in the last two cars, and that the others were generally full, and still got on the full car, he cannot recover if the notices not to stand on the platform was duly posted in the cars at the time.
    The Judge replied to both counsel, that he had already substantially charged many of the propositions proposed, and declined to charge otherwise than as he had already done; to which refusal the counsel for both defendants excepted.
    The Judge then submitted to the jury, with the consent of both parties, the following questions, to which they were to give specific answers, to wit.-:
    1. Were printed regulations against standing upon the platform posted up, at the time when the plaintiff took his passage, in a conspicuous place inside the passenger cars ?
    2. Did the plaintiff know of those regulations ?
    3. Did the Hew York and Harlem Railroad Company when the plaintiff took his passage furnish room sufficient inside their passenger cars, then composing the train, for proper accommodation of the plaintiff within the cars ?
    4. Were the defendants, the two companies, or either of them, by their agents, guilty of any negligence which caused the injury to the plaintiff; and, if only one of them, which ?
    5. Was there sitting accommodation sufficient for the plaintiff when he got into the car at Harlem ?
    6. Had the plaintiff time to get such accommodation ?
    The jury then retired, and after being out, came in and asked the instruction of the court as to what was meant in the charge by the negligence of the plaintiff contributing to the injury sustained by him; to which the court replied as follows:
    The general rule is, that the negligence of a plaintiff that goes to excuse the defendants, must be such negligence as contributed to produce the accident that caused the injury.” To which the defendants’ counsel duly excepted.
    The jury then retired, and after an absence, rendered a verdict of $450 against both of the defendants; and found specially, in answer to the first question, that it was not proved.
    To the second question, they found in the affirmative.
    To the third question, they found in the negative.
    To the fourth question, they answered, Both.
    To the fifth question, they answered in the affirmative.
    To the sixth question, they answered in the negative.
    These questions were proposed to the jury with the consent of the counsel of the respective defendants.
    After the rendition of the said verdict, the court, with the consent of the counsel for both parties, made the following order:
    “ It is ordered that the defendants have twenty days to make a case, with liberty to turn the same into a bill of exceptions. That the case or bill of exceptions be heard at the General Term in the first instance without security, and that all proceedings on the part of the plaintiff, except in relation to the hearing of said case or bill of .exceptions be stayed until the decision thereof.”
    This case is made by the defendants respectively, for the purpose of setting aside the said verdict and obtaining a new trial, with liberty to either party to turn the same into a bill of exceptions.

      John Graham,, for plaintiff.

      Charles W. Sandford, for Harlem R. R. Co.

      Wm. Curtis Noyes, for New Haven R. R. Co.
   By the Court. Bosworth, J.

The fourth, question specially-submitted. to the jury was in these words:—

“Were the defendants, the two companies, or either of them, by their agents, guilty of any negligence which caused the injury to the plaintiff; and, if only one of them, which ?” To this question the jury answered, “both.”

I understand the jury, by their answer to this question, to have found, that the negligence of both companies concurred to produce the collision which caused the injury.

The counsel for the New Haven Railroad Company insiste that no action will lie against the defendants jointly, as the negligence of each was an independent act or omission of its own. That to maintain such an action, a single act in furtherance of a common purpose, or a single omission of duty, which was in fact joint, must be shown.

He also insists that, inasmuch as the jury have found that the negligence of the Harlem Company concurred with that of the New Haven Company to produce the collision, so that the former could not maintain an action against the latter, to recover damages resulting from the collision, the plaintiff is equally precluded from recovering for any injury inflicted on himself, on the ground that, as between the plaintiff and the New Haven Company, the car of the Harlem Company was the plaintiff’s carriage, and the negligence of that company, for all the purposes of this action, is to be treated as his negligence.

The first of these two propositions challenges the right of the plaintiff to maintain an action against the defendants jointly.

The other denies all liability of the New Haven Company to the plaintiff, even though sued alone.

The complaint states, as a cause of action, that the plaintiff was injured, by such negligent management by each company of its train of cars, that the two trains came in collision, and that by such collision the injury was inflicted.

If the views pressed upon our consideration, by the counsel of the New Haven Company, are sound, then it is obvious that the complaint could have been demurred to by that company, on the grounds:—

First. That it appeared, on the face of the complaint,, that several causes of action had been improperly united, inasmuch as each of them do not affect all the parties to the action. (Code, § 144, sub. 5, and § 167, sub. 7.)

Second, That the complaint does not state facts sufficient to constitute a cause of action, in favor of the plaintiff, against the New Haven Company. (Code, § 144, sub. 6.)

The Code is explicit, that when the first objection appears on the face of the complaint, and the defendant omits to demur, he shall be deemed to have waived it. (Code, § 148.)

When two persons are made defendants, and the complaint states, as a cause of action, facts sufficient to constitute a cause of action against each, and to create, by reason of the same facts, a liability of each co-extensive with that of the other, so that the measure and rule of damages is precisely the same in the one case as in the other, and neither defendant demurs, it may be a nice question, under the Code, whether a single verdict against both would be erroneous. If the verdicts and judgments were several, and each for the same amount, apd the judgment was collected in full of either company, it is not apparent on what principle such company could recover contribution from the other. If each is liable, it is not obvious that a joint verdict and judgment can operate, in legal contemplation, to the prejudice of either. (2 Kern. 580.)

If both companies are liable, but the liability is several, and if they would have had a right, if they had demurred to the complaint, to have been sued in separate actions and tried separately, yet it is undeniably true that if each company is separately liable, the liability of each arises out of the same transaction, and it is to be or may be established by precisely the same evidence in the one case as in the other. The liability is for the same injury, and arises from each defendant having so acted at the same moment of time that the action of each, though independent of that of the other, contributed to produce a catastrophe which caused the injury.

Assuming the fact, as to the concurring and contributory negligence of each defendant to be as the jury has found it, and that it has been found on proper evidence and under a correct charge to the jury, then it is evident, that in a case of the peculiar facts and circumstances of the present, it is more a matter of form than of substance, that a verdict of $450 has been rendered against both defendants jointly, instead of a separate verdict against each for that amount.

There is no complaint made on this motion, that the damages are excessive, or that the charge to the jury, in respect to the damages, was erroneous in any particular. But, assuming that the Hew Haven Company is liable, is the objection well founded in fact, that a joint action is not the proper remedy, irrespective of any provision of the.Code relating to the practice in such cases?

The defendants, together, caused the collision. If each company had done the acts it did, with intent to produce the collision, then, I presume, there would be no question that a joint action would lie at the suit of any party damaged directly by it. But in that case, the collision would be no more the joint act of the two than it was in the present case. On the one supposition, the result produced, that is, the collision, was intended by both; on the other supposition, it was not intended by either. If liable jointly in the former case, and not in the latter, it must be for the reason that in the one the intent to do what was done creates a joint liability, and in the other, the absence of any such intent makes the liability several.

But when a party does a wrong which causes an injury, he is liable for the consequences, whether he intended to injure any one or not. A person who negligently performs a duty, and by such negligence injures another, is guilty of a wrong, so far as the rights and remedies of parties in civil actions are concerned. When a person is prosecuted in order to recover from him the damages which his negligence has caused to another, it is no defence that negligence, or a purpose to injure, was not intended.

In this case, it is impossible to ascertain what portion of the injury was caused by the negligence of one defendant, and what portion by that of the other. The negligence of each co-operated with that of the other, and the concurring and contributory negligence of both was the direct, and immediate, and sole cause of the collision, or, in other words, caused the injury.

If two persons, driving each his own carriage on a public highway in opposite directions, come in collision in consequence of each having been guilty of such negligence that neither could recover of the other, and a third person, not in either carriage, without any fault or negligence on his part, is injured by the collision, can it be doubted that he may sue the parties jointly and recover ?

The inj ury was caused by a single act. It was caused directly by the joint action of the two; not by action had in pursuance of a common intent to cause a collision, but by action to which each was, in fact, a party.

There would seem to be no considerations of public policy or of justice to either of the defendants, requiring several actions to be brought if it be conceded that each is liable, and to precisely the same extent. The injury is single, and the immediate cause of it is a single act. The same evidence that establishes the liability of one, on such a state of facts as the jury have found, establishes that of the other. It is true, there might be a recovery against one without proving any negligence of the other, or although negligence of the other might be disproved.

If but one was guilty of negligence, when the complaint charges that the injury was caused by the concurring negligence of both, and for that reason the one free from fault is free from liability, he must be acquitted. He incurs no "more hazard of not obtaining a verdict according to the evidence than any one sued with others in any action of tort does, whom the evidence is insufficient to convict of a direct or actual participation in the wrong charged. (See Fosgate, et al. v. Herkimer Manufacturing and Hydraulic Co., and others, 2 Kern. 580.)

In a case like the present, and on such facts as have been proved in it, I think it may be said that the collision, and not the mere negligence of the defendants, is the cause of action and ground of the defendants’ liability.

It has been decided that if A accidentally drive his carriage against that of B, and the latter or his carriage is injured, trespass will lie. (Leame v. Bray, 3 East. 599.) So, if he drive it against one in which B is sitting, to the injury of his person, though the latter carriage was not his property nor in his possession. (7 Taunt. 698.)

When a person is directly injured by the forcible act of another, trespass for the forcible act is a proper remedy to. recover the damages caused by it. The forcible act and consequent injury constitute the cause of action. It is immaterial, so far as the question of liability is concerned, whether it was wilful, unintentional, or the result of negligence. It is enough, so far as the plaintiff’s right to recover is concerned, that it cannot be justified. Whether it was wilful or unintentional may affect the measure of damages, but does not enter into the ground or reason of the defendants’ liability. (Wakeman v. Robinson, 1 Bing. 213.)

In Blinn v. Campbell, (14 J. R. 432,) the court “held, that if the injury is attributable to negligence, though it were immediate, the party injured has his election, either to treat the negligence of the defendant as the cause of action, and declare in case, or to consider the act itself as the injury, and to declare in trespass.”

The question was again discussed fully, in Percival v. Hickey (18 J. R. 257).

The action was trespass, for running down the vessel of the plaintiff at sea. The jury found for the plaintiff, and the Judge having requested, if they should so find, that they should state the grounds of their verdict, “they added, that the disaster was the result of gross negligence in the defendant.”

The question whether trespass could be maintained on such a state of facts, was discussed until it was exhausted, and all the previous decisions critically reviewed. Chief-Justice Spencer, who delivered the opinion of the court, concluded with this declaration : “I am perfectly satisfied, from a review of the cases, that if the defendant is liable at all, this action is appropriate, and that it ought to have been trespass rather than case, as the injury was immediate, and from gross negligence.”

The complaint of the plaintiff charges, .that the collision of the two trains was caused by the negligent, reckless, careless, and wrongful management of the trains; that by reason, and in consequence of the collision so produced, the platform of the car on which the plaintiff stood, “was with great force and violence shaken, and broken, and otherwise injured, by means whereof the plaintiff was knocked or thrown down, and with such power that his right leg was fractured between the ankle and knee, and he otherwise severely and seriously bruised and injured upon and about the body.”

In brief, the complaint is, that plaintiff being a passenger in one of the trains, the defendants wrongfully run the two trains against each other wiith such force and violence, that the plaintiff was knocked down, his leg was fractured, ánd he was otherwise severely bruised and injured.

This states, as. a cause of injury and ground of action, a wrongful and forcible act of the two defendants, of itself single and entire, which immediately and directly injured the plaintiff’s.person. Trespass would lie, for such an act, against the parties concerned in this .act of force and injury.

Enough is stated to make a declaration, good in substance, in an action of trespass vi et armis.

Then what is the rule, as to the persons chargeable as principals, or joint trespassers, iri such an action?

It cannot be stated better, or more briefly, than was doné by the court in Guille v. Swan (19 J. R. 381-382). Where an immediate act is done by the co-operation, or the j oint action of several persons, they are all trespassers, and may be sued jointly or severally ; and any one of them is liable for the injury done by all.”

Without the gross negligence of each defendant, there might have been no collision, and, of course, no injury. It cannot be affirmed, from' any fact found, nor be deduced clearly from the evidence, that if either of the defendants had not been guilty of negligence, there would have been a collision.

The act, which is charged as the direct cause of the injury, is the result of the co-operating action of both defendants, and without such co-operating action, might not, and, for aught we know, or can see, would not have occurred or existed.

In this respect, it differs intrinsically from the facts of some cases, which are relied upon as tests, to determine whether an action shall be .joint or several.

A reference to one or two, 'as a specimen of the class, will suffice.

Williams v. Sheldon (10 Wend. 654) was an action against eight persons, as joint trespassers, for cutting and carrying away logs from the plaintiff’s lot. One hundred and fifty logs were cut arid carried away. The jury were charged, in substance, that if they acted in concert in cutting all the logs, they were jointly liable; but if any of them were acting separately, and for themselves alone, without any concert with the others, they ought to be acquitted, and those only found guilty who were acting jointly.

If, instead of one hundred and fifty logs, only one tree had been cut, and all had been proved to be present and employed at the same time, upon the tree, in cutting it up and carrying it away, I apprehend there would be no doubt of their joint liability. If the act of trespass had been confined to a .single piece of property, and all had actually co-operated in that act, no question of mental concert, or concurrence of purpose, could have been raised.

In Auchmaty v. Ham, (1 Denio, 495,) and Van Steenburgh & Gray v. Tobias, (17 Wend. 562,) the defendants were not sought to be charged for any thing done in person, or by their agents.

Two persons, each of whom owned a dog, were sued jointly, because their dogs had chased and worried a flock of sheep, and killed some of them, and injured others.

It was not the case of an immediate act, by thé co-operation of two persons, or their agents, causing a direct and immediate injury to the person, or a specific and single thing, the property of another. Some of the sheep may have been bitten, or killed, solely by the one dog, and some by the other.

In the present case the cause of the injury was a single act. It was immediate, its continuance or duration was but for a moment. It was forcible and violent. The plaintiff’s person was injured directly by it. The injury was caused solely by the co-operation of the two defendants in a forcible act, and so absolutely so that, without this co-operation of the two, the act itself might not, and, for aught we can see, would not have existed as a fact.

It would seem to follow that, if these two corporations were physical beings, and they had at the time done, in person, the act complained of, they might have been sued as joint trespassers. Does the fact that they acted by agents make any difference, so far as the rights and remedies of the plaintiff are concerned?

It must be remembered that the actual defendants are incorporeal beings, and can only act by agents. It is a part of the law of their being that they can act only by the instrumentality of natural persons.

Yet it has been repeatedly adjudged that they may be sued in trover or trespass, and may be indicted. (Beach v. The Fulton Bank, 7 Cowen, 485; The People v. The Corporation of Albany, 11 Wend. 539; Riddle v. The Proprietors of Locks, etc., 7 Mass. 169.) The principle settled by adjudged cases seems to be this:—

• When an injury is done by the agents of corporations, in the course of their employment, by whom alone they can act at all, the corporation should be responsible, so far as concerns the rights and remedies of the injured party, when liable at all for such injuries, in the same manner as an individual. Not only in contemplation of law, but in fact, the acts of such agents are the acts of their principals. There is now no obstacle to a recovery, according to the liability arising upon the actual facts of the case, created by the mere form of an action.

The collision being the act of the two companies, and that act being forcible and without any thing to justify it, and the plaintiff having been injured directly by it, the defendants, although corporations, being liable for it, may be sued jointly, as well as natural persons.

Is the negligence of the Harlem Company to be imputed to the plaintiff, so that he cannot recover against the New Haven Company at all, provided the Harlem Company could not itself, by reason of such negligence, recover against the New Haven Company the damages which resulted to the former from the collision? The counsel of the New Haven Company insists that, the proposition that he cannot recover is sound in principle, and supported by authority. He cited, and mainly relies upon, Thorogood v. Bryan, (8 M. G. & S. 116,) and Catlin v. Hills, and others, (id. 123.)

Those cases hold that one who sustains an injury from a collision with an omnibus or vessel, cannot maintain an action against the owners of such omnibus or vessel, if negligence on the part of those having the guidance of the omnibus or vessel in which he was, at the time, a passenger, conduced to the collision.

This question is one of great importance, and was conceded in those cases to be one of novelty. The rule invoked by the New Haven Company, in its defence, if it is declared to be the law of the land, and applicable to passengers carried by incorporated railroad companies, should find in the common law some well-settled principles sufficient to uphold it.

One principle, deemed to be as well settled as any other, gives to every person injured, without fault or negligence of his own, by the negligence of another, a remedy by action to recover from him the damages sustained. Why should he lose this right, because he was, at the time, a passenger in the cars of a railroad company, whose negligence conduced to the act which caused the injury?

The railroad companies incorporated by our state legislatures are grantees of a franchise. In the view taken of them by the legislature, and by the courts, the state, as such, has an interest that the roads which they are authorized to construct, should be built and operated.

The courts have held, that the legislature, in its discretion, might justly determine, that the benefit from them to the public would be of sufficient importance to render it expedient and constitutional to authorize, in their behalf, the exercise of the right of eminent domain, and private property to be taken for their construction, on making just compensation.

It is true, that no person is under any physical necessity of travelling upon them. But the exigencies of business, for all practical purposes, make it absolutely necessary to- use them. A passenger in their cars has no control of their movements. On the contrary, he is required to submit to every rule and regulation which the company, in the appropriate exercise of its discretion, prescribes for the conduct of the passengers.

I can see no reason, or consideration of public policy, which Should deny to such a passenger a right of action against another person or company, by whose negligence he has been injured, solely on the ground that the company, in the cars of which he was a passenger, was also guilty of negligence, which conduced to the act, or casualty causing the injury.

If it be said, that under this rule, the New Haven Company may be compelled to pay the whole of the damages caused, in part, by the negligence of the Harlem Company, it may be answered that, under the contrary rule, the Harlem Company would be compelled to pay damages, which, but for negligence on the part of the New Haven Company, might never have been occasioned. The answer to this complaint, by either company, is, that when an injury is produced directly and immediately, by the co-operating and concurring influence of each in wrong doing, each is liable to the injured party for the whole consequences of the 'wrong. Being participants in, and parties to, the wrong, the law does not, in this case, any more than in any case of pure tort, undertake to ascertain what proportion of the injury was caused by the negligence of either, and hold him responsible for that only, but, on the contrary, permits the injured party to join all the wrong-doers in one action, or to sue them separately, and, in either case, to recover the whole damages to which he has been subjected.

In point of fact, the plaintiff had no more right or power of control over the one company than over the other. Any fiction of law which imputes to him the negligence of the company, in the cars of which he was a passenger, is a satire upon its pretensions to administer justice according to the truth of the case, as disclosed by the facts which the evidence has established.

It will not be denied that if any person, not a passenger in the cars of any company, was injured by the negligence of the latter, that such negligence would not be imputed to any-We, being a passenger at the time, in any such sense, as to subject him, to any liability to the injured party.

Why should it be imputed to him, so as to deprive him of a right to redress against another company, for the negligence of the latter, which right would have been indisputable, if he had not been a passenger in the cars of either company ?

In Thomas v. Winchester, (2 Seld. 397-410,) the Court of Appeals seem to have affirmed the proposition, that there is a recognized distinction between an act of negligence imminently dangerous to the lives of others and one that is not so.

In the former case, it is said that the party guilty of the negligence is liable to the party injured, whether there be a contract between them or not; in the latter, the negligent party is liable only to the person with whom he contracted.

But without attaching, so far as this question is involved, any special importance to the fact that the act of negligence, in this case, was one imminently dangerous to human life, it may be said that there is nothing in the nature of the act furnishing a distinct consideration to induce a court to adopt the rule under which the Hew Haven Company seeks to exonerate itself from liability.

The point now under consideration was not taken at the trial, and the record does not disclose that even the suggestion was then made that the defendant was exempli from liability on this .ground. But as the Code allows the objection, that the complaint does not state facts sufficient to constitute a cause of action, to be taken in any stage of the action, the question may be raised as well on an appeal from a judgment in it as on a demurrer to the complaint. (§ 148.)

We think the rule, as the New Haven Company insists it should be declared and applied in this case, is not warranted by any considerations of public policy, and infringes the principle, that every person injured, without fault on his part, by tlie negligence or forcible act of another, may recover of the latter the damages sustained. That in a case like this, it is repugnant to good sense and common honesty to impute to him, for any purpose, the negligence of the railroad corporation, in the cars of which he was a passenger at the time he was injured by the collision of the cars of the two companies, a collision caused solely and directly by the concurring negligence of both companies; and the act of negligence on the part of each company being imminently dangerous to human life.

If these views are correct, the verdict should not be disturbed, unless some of the exceptions taken to the decisions of the Judge who presided at the trial require it.

With respect to the refusal to nonsuit the plaintiff, it is sufficient to say that the defendants did not choose to stand upon that exception; but, on the contrary, gave evidence in their own behalf, and no application has been made to set aside the verdict as contrary to evidence.

There was no error in denying the motion made by the New Haven Company for a separate trial, even if it be assumed that the defendants’ liabilities were several. The motion was not made until the trial had progressed so far that the plaintiff had rested.

The defendants having failed to demur to the complaint, waived their right to a separate trial, even if their liabilities were several. (Code, § 144, sub. 5, § 148; Session laws of 1851, p. 889, § 172.) If the opinion already expressed, that the defendants were properly united, is correct, that of itself puts an end to the exception.

The next question relates to the offer of the New Haven Com-. pany to demur to the evidence, and to the exception taken to the decision overruling the offer. This offer was made after the plaintiff rested, and after the Harlem Company had opened its defence to the jury, and stated that it would consist of proof that all the negligence which caused the collision was attributable to the Hew Haven Company.

I do not think an exception to a decision overruling an offer of a defendant to demur, made when the plaintiff rested, can be reviewed, if the party, instead of relying upon his exception, gives evidence on his part, and submits the cause to a jury upon the whole evidence. If such an exception would entitle a defendant to a new trial, provided the evidence given when the plaintiff rested and the offer to demur was made, was insufficient to entitle him to recover, this result would follow. The evidence subsequently given, and submitted to the jury under proper instructions, might require and result in a just verdict against the defendant on the merits. Then, although no improper evidence had been admitted nor any proper evidence excluded, and the cause had been correctly disposed of upon the merits, the defendant would have a new trial, because the evidence given when the plaintiff rested would have entitled the defendant to a new trial, on exception to a refusal to nonsuit, or on a demurrer to such evidence, that being the whole evidence given.

I understand it to be settled that although the Judge erroneously refuses to nonsuit when the plaintiff rests, yet, if the defendant, instead of relying on the exceptions, gives evidence on his part, the exception is waived at least to this extent, that if on the whole evidence a verdict is correctly found against him, the exception cannot be made available. After the verdict has been rendered the question is, did the whole evidence warrant the finding of the jury ? Or if the motion was renewed, when all the evidence was concluded, the question might be, did the evidence justify the submission of the cause to a jury ?

If a defendant insists, when the plaintiff rests, on a right to demur to the evidence, and the Judge refuses to receive the demurrer, if the defendant intends to rely on the mere refusal to receive the demurrer, as of itself sufficient to entitle him to a new trial, he should abide by his exception. If, after excepting, he . gives evidence to the merits, and the jury find against him upon the whole evidence, and properly so, the exception should be treated as having been waived, by the subsequent proceedings. The defendant has acquiesced in the sufficiency of the evidence to sustain the verdict, if an omission to move to set it aside, as being contrary to evidence, is to be deemed such an acquiescence. At all events, the verdict and an omission to move to set it aside, conclude.the defendant as to the sufficiency of the evidence upon this appeal.

In Young, et al. v. Black, (7 Cranch, 565, Livingston & Story, J. J.,) held that it was discretionary with the Judge at the trial, whether he would compel a party to join in demurrer to the evidence or not. No cases have been cited which adjudge the point that such a refusal is error, for which a new trial would be granted.

The remaining points involve the consideration of exceptions taken to the charge of the Judge.

The jury found that the Harlem Company had caused regulations, prohibiting passengers from standing upon the platform of the cars, to be printed, that the plaintiff knew of those regulations, but that npne were posted up inside of the passenger cars of this train.

The statute itself does not prevent a plaintiff from recovering merely because he stood on the platform of the car when he was injured, unless printed regulations were, at the time, posted up in a conspicuous-place inside of the passenger cars then in the train, nor even in that case unless sufficient room was provided inside the passenger-cars for the proper accommodation of the passengers. (Laws of 1850, p. 234, § 46.)

If the plaintiff’s right to recover of the Harlem Company is barred by the fact that he stood upon the platform, it is not because the statute creates the bar. Neither does the statute create an immunity, which would not otherwise exist, to the' negligence by which a passenger is injured, unless it be the negligence of the company, in the cars of which he is a passenger. The statute is penal in its nature, and so far as it adds one to any defence furnished by the rules of common law, and adds a defence which, under those rules, would not exist, it works a forfeiture of the right to be redressed for a wrong, on a rule of decision not warranted by the principles of the common law. Such a statute should not, by construction, be extended to cases for which it does not provide.

The jury found there was sitting accommodation in the train sufficient for the plaintiff when he got into the cars at Harlem, but that he did not have time to get such accommodation before the collision; or, perhaps, I should say before the train was put in motion.

No motion having been made to interfere with the verdict, as being contrary to the evidence, we must regard it as a true record of the actual facts as specially found. If these facts entitle the plaintiff to recover, the judgment must be affirmed, unless the court erred in its instructions to the jury, in stating rules by which they were to be governed in finding these particular facts.

No exception was taken to the charge in respect to the matter of damages, and no complaint has been made against it on the argument of this appeal. The portions of the charge complained of relate to the plaintiff’s right to recover at all, and not to the measure of compensation, if enough was proved to justify a verdict in his favor.

I think it will be difficult to lay a finger on any passage of the charge which could have operated to the prejudice of either defendant with the jury in determining either of the six several questions to which they were requested to return, and did return, a specific answer.

The portions of the charge to which exception was taken, relate to the construction of the statute in relation to the posting of notices inside of the cars, and to the mánner in which the rule was stated as to what was such negligence of the plaintiff as would preclude him from recovering.

The Judge, after having presented his views at length, stated them in a condensed form, and on such statement submitted the cause to the jury.

He commenced with the remark, that there was no evidence that the plaintiff was prevented or forbidden by the conductor to get upon the platform. This was not excepted to, and must be taken to be true. The Judge then told the jury, that if the plaintiff, after he got upon the train, and found that the first car had no accommodation for him, had time, before the train was in motion, to have found accommodation, he was guilty of negligence which would bar a recovery, provided there was, in fact, sufficient accommodation for him, and the notices authorized by the statute were posted up. I think it quite clear that the defendants have no ground to complain of this part of the charge. But if he had no time to seek for a seat elsewhere before the train was in motion, then, not having been forbidden by the conductor to stand upon the platform, he was there lawfully, and the statute could not operate to exempt the defendants from liability. To this the defendants excepted.

How some of the facts involved in these propositions were found by the jury appears by the special verdict. They found that no notices were posted up, and that the plaintiff had no time, before the train started, to seek a seat in another car. The charge assumes as an incontestible fact, that the car on the platform of which he was standing, had no inside accommodation for him, and asserts, without objection from either defendant, that the conductor neither forbid, nor attempted to prevent, his standing on the platform.

Unless the mere fact of being on the platform, under such a state of facts as exists in this case', is, per se, such negligence as disentitles the plaintiff to prosecute, then there was no error in this part of the charge.

There is no pretence that the plaintiff had the slightest reason to suppose that any cars of the Mew Haven Company were, or might be, on the track ahead of him, while some of the officers of the Harlem Company knew it, and if they had done their duty, they would have communicated this knowledge to the conductor of this train at the last stopping-place prior to the collision. The plaintiff had no knowledge of any fact or circumstance which should have induced the most cautious and prudent man to guard against the occurrence or consequences of any disaster, except some one which might possibly result from the negligence of the Harlem Company,

The negligence of the plaintiff in getting upon this car rather than upon another, or standing upon the platform when the car was full inside, and was put under motion before he had time to seek for a seat elsewhere, is not alone such negligence as bars his right to recover.

In the case of Carroll v. The N. Y. and N. H. R. R. Co., (1 Duer, 579,) the defendant’s counsel requested the court to charge the jury, that “ if they believed that the plaintiff, by riding in the baggage car, increased the risk of injury to himself, and this was negligence which contributed to the injury plaintiff suffered, he cannot recover, although he had no agency in producing the collision.' The Judge refused to so charge, but charged that, “ The plaintiff here did not contribute to produce the collision itself, and there was not, therefore, such negligence on his part as will defeat the action.”

“ If the plaintiff was there with the assent of the conductor, notwithstanding the notice, he was not in fault, unless he was guilty of negligence which concurred directly in producing the injury.” “ That the negligence of the plaintiff, however, must concur directly, not remotely, in producing the accident or injury.”

This court held that the Judge committed no error in refusing to charge as requested, or in the charge that was made. The judgment of this court has been affirmed by the Court of Appeals.

In the case before us the Judge charged, that standing upon the platform of the car had no effect in producing the collision by which the injury was effected. That the mere fact of standing upon the platform was not, of itself, a defence to the action. To this part of the charge the defendants excepted.

The collision was the proximate, direct, immediate and sole cause of the injury. It is true, if the plaintiff had not been within the reach of its influence he would not have been injured. But, on the facts as found, he was in no sense in fault, as between him and either defendant, in being where he was. He was not, as to either of them, wrongfully there. He owed no duty to either of them which required him to be elsewhere. If he had been off of the train the collision would have occurred.

His being where he was, not being wrongful as to either defendant, nor a failure to perform any duty which he owed to either of them, it is no defence to an action brought to recover damages caused by their negligence, that the position, in the event of such negligence, a negligence which no one could foresee or had the slightest reason to anticipate, was one of more danger than a seat in one of the cars, and that if he had been seated he might not have been injured.

The law looks to the proximate cause of the injury. When a plaintiff did nothing which conduced to that, and at the time of its occurrence, he is lawfully in the position which he occupies, and there is no negligence in not anticipating or foreseeing the possibility of an injury from the negligence of others which, if it should occur, would endanger his safety in any part of the train, and it is by such negligence that he is injured, then there is no negligence on his part, in the legal sense of the term, which contributed to the accident or to injure him. (5 Denio, 266-7.)

I think there is nothing in that part of the charge, relating to the subject of the plaintiff’s negligence, which, in contemplation of law, tended to prejudice the rights of either defendant. In determining this question, the facts which the jury have specially found, and which this appeal concedes to have been properly found, must be kept in mind. And unless, upon such conceded facts, this part of the charge may have produced a general verdict contrary to law, it will not entitle the defendants to a new trial.

I think the Judge would have been correct in instructing the jury that, as matter of law, the plaintiff was entitled to recover, if they found that he was injured directly by the collision, and that this collision was produced solely and immediately by the concurring and co-operating negligence of both defendants, provided they should also find that no notices were posted up inside of the cars, and the car on which he entered had no accommodations for him inside of it, and the train started before he had time to seek for a seat in another car, and the conductor knew of, and did not object to, his standing on the platform. (I include all these facts in this proposition because they are all established in this case.) That, on such a state of facts, the mere circumstance that he stood upon the platform at the time of the collision, would not of itself be such negligence on his part, as would be a bar to his right to recover.

Whether this proposition be a sound one, seems to me, to be the only question which the case presents, in relation to the subject of the actual liability of the defendants. Whether their liability, if it exists, is joint or several, is a different question, and has been already considered.

As to the negligence of the defendants, the Judge charged that, fhey “ are liable only in case the disaster was produced by their owp negligence. Negligence having no connection with the disaster is not to be regarded in this action. The defendants can be held jointly liable only in case the negligence was joint. If either was innocent of any fault contributing to the disaster, your verdict must be for that defendant; if both were innocent, your verdict must be for both defendants.”

Independent of the question, whether joint negligence is predicable of such a state of facts, and which has been already discussed, I think the question as to the several liability of either, or neither, of the defendants, was properly submitted to the jury.

This collision occurred at about 6 o’clock A. H., of the 22d of November, 1854. This freight train of the New Haven Company was due at the Centre street depot, at 15 minutes past 11 o’clock, P. 51., of the preceding day, By its general regulations and time-tables, fixing the time of the departure and arrival of each of its trains, the New Haven Company notified the public that, between 11.15 p. M. of one day and 7 A. M. of the next day, none of its trains would be on this track of the road between Harlem and New York.

Any passenger in any Harlem train, from Harlem to New York, running at 6 A. M., was under no obligation, and owed no duty to the New Haven Company, requiring him to ride in one part of the train rather than another, in anticipation that a train of the New Haven Company, due in the city of New York at 11.15 p. M. of the 21st of November, might, at 6 A. M. of the following day, not only be on the down track of this part of the road, but, also, that it might be under such° negligent management, as to render it not improbable that there might be a collision between it and the cars of the Harlem Company, in which he was a passenger.

So long as this passenger was lawfully where he was, as between himself and both companies, and as the exercise of ordinary care on their part, and a performance of the duty which each company owed to all the passengers on this road, would have prevented a collision, and there was no fault on the part of the plain'tiff in not anticipating such a collision, or in seeking a seat with reference to its possible occurrence, it should be held, as I think, as matter of law, that the fact that the plaintiff was on the platform at the time of the collision is no bar to the action.

Negligence of a plaintiff which “ contributed to the injury complained of,” and negligence which contributed “to produce the casualty or occurrence which caused the injury,”/ are, in most cases, equivalent expressions. In reference to the facts of this case, the latter mode of expression, correctly expressed the rule which should have been stated to the jury. (Carroll v. New Haven R. R. Co., 1 Duer, 571.)

There must be a judgment for the plaintiff on the verdict.

Woodruff, J. (Dissenting.)

While I concur fully in the conclusions at which my brethren have arrived upon several of the questions raised by the appeal in'this case, there are others which are essential to the maintenance of the verdict herein from which I am constrained to dissent.

It is undoubtedly settled, by the decision of the Court of Appeals in Fosgate, et al. v. The Herkimer Manufacturing Co., et al, (2 Kernan, 580,) that the improper joinder of parties defendants, or of causes of action, must be taken advantage of by demurrer, or by an answer which raises the question of joint or several liability, or it will be deemed waived. The case cited was an action of ejectment and the complaint charged that the defendants unjustly withheld from the plaintiffs the possession of the premises,” etc. The answer denied “that the defendants, or any of them, unjustly withheld from the plaintiffs the possession of the premises or any part thereof.” The verdict found this issue in favor of the plaintiff, and the judgment properly followed the issue which the defendants had by one answer jointly raised. They had voluntarily rested their defence upon the question whether the defendants, or any of them, unjustly withheld from the plaintiffs the possession of the premises, and the jury found that they did so withhold, etc., and the court held that although upon the evidence each defendant may have been only liable in respect to such portions of the premises as he occupied in severalty, yet that, under those pleadings, proof that the defendants occupied in severalty was immaterial and irrelevant to any issue. They had rested their defence, not upon the nature or extent of their several occupation, but upon the denial that they, or any of them, withheld the possession, etc.

If the verdict in the present case, under the rulings had at the trial, can be brought within the rule established by that decision, then of course we should, so far as the objection herein rests upon mere misjoinder of parties to the action, or of causes of action, order judgment for the plaintiff upon the verdict.

But where the complaint alleges facts which, if true, create two causes of action, upon one of which only each defendant is severally liable, and the defendants severally put in issue the facts charged, so far as they are respectively affected thereby, it does not follow, from the decision referred to, that each is to be charged with liability upon both causes of action. The omission to object, by answer or demurrer, that there is a misjoinder of parties, or oi causes of action, will prevent their raising that objection at the trial, but it does not subject either to a recovery against himself upon and for the several liability of the other.

When the liability charged in the complaint is charged upon both as a joint liability, and they think proper to unite in an answer denying that they or either of them are liable, they may, as in the case referred to, preclude themselves from entering at all upon the question, whether their liability is several or not, but this, at the utmost, is the extent to which, as I think, the court of appeals intended to go in their decision.

Suppose, for example, two are sued as makers respectively of two promissory notes, one signed by each, and they severally deny the making thereof, not having objected, by answer or demurrer, that they or the causes of action ought pot to have been joined in one action, perhaps the plaintiff may proceed to trial, and have judgment against each for the amount of the note made by him; self. But surely the omissipn to demur or set up the misjoinder by answer, does not warrant the judgment against either for the amount of the note made only by the other. The rulings at the trial, the instructions to the jury, and the judghient rendered, must be according to the several liability of each.

This illustration may or may not be like, the case disclosed in the pleadings and by the evidence on the trial of the present action. I give it for the purpose of stating the principle involved in it—whether the principle, if- correct, has any application to the case before us may be hereafter considered—and I, therefore, add that where the pleadings and proofs disclose a state of facts upon which the defendants are only severally liable for their own. separate acts or defaults, and neither for the acts or defaults of the other, and the defendants answer separately, denying each on his own behalf his liability for the causes alleged, it is erroneous to charge upon each a responsibility for the acts ox defaults of the other, and proceed on the trial, in the verdict and by the judgment, as if they were jointly liable.

It is true that if, in the case before us, it shall appear that whether severally or jointly liable, each is necessarily liable, if at all, to precisely the same extent, and for the very same amount of damages, the question will become a question of form only in respect to this particular instance, except so far as the defendants were involved in a conflict with each other, which placed both defendants at disadvantage on the trial, and gave the plaintiff an opportunity to profit by the efforts of each defendant to charge the co-defendant with liability for the matter complained of. Whether the court can say that the effect of this "conflict was any thing more than to develope the whole truth, it is not necessary, under the -views I entertain of the other questions involved, for me to say. But if the liability of each defendant is precisely the same in extent and as to amount, and if for that reason the objection is wholly immaterial because no injustice is done, it should be disposed of as a question of form only. The substantial principle involved should be at least rightly-stated and the correct rule recognized.

And on the other hand, if in this case both defendants, though only severally liable, have in truth been treated as liable for the acts or defaults of each; and under the evidence they are not, as matter of law, necessarily liable to the same extent and for the very same sum as damages, and especially if there are facts which tended to show that one of the defendants was not liable at all, or that the one was liable on grounds which did not affect the other, and for which such other was not responsible; then the question whether the liability is joint or only several, becomes not only important in principle, but material to the defendants and vital to the maintenance of the verdict.

There are considerations which will be suggested tending to this view of the defendant’s situation in reference to the present verdict, and which have led me to the conclusion that if the defendants are not jointly liable, the verdict should be set aside, and so far as the conclusion of my brethren rests upon the ground that the defendants are so liable, it is to that extent, at least, an important inquiry, vital, as I think), to the decision of the case before us.

After careful reflection, I am constrained to say, that upon the facts in this case, a joint action against these defendants cannot be maintained.

A fundamental principle lies at the foundation of all joint liability, and that principle is, that each of the parties charged is liable for the act or default of the other. This is no more and no less true in reference to joint liability in actions ex contractu than in those ex delicto ; in the former these parties are liable upon the saíne grounds, and for or in respect to the identical cause, and to the same extent.

And in actions ex delicto it is of the essence of joint liability, that the acts or defaults of each defendant are imputed to the other, as effectively for all purposes, as if they were the acts or defaults of himself; and the liability of each for the acts or defaults of the other, enters not merely into the extent of the liability of each, but into the very basis and ground of such liability.

And as respects the ground of liability in its bearing upon the question whether two parties are jointly liable, it makes no difference whether the action be trespass vi et armis (formerly so called) or trespass on the case for consequential damages. In the former case, each must be liable for the trespass which the other has committed, i. e., each must be liable for the other’s act. In the latter case, each must be liable for and in respect of the act or default of the other, from which the consequential damages have resulted.

It is in the very elements which constitute a joint liability, that the cáse before us is deficient,

There is nothing in the relation which the defendants bear to each other or to the present plaintiff, or to the injury which he has sustained, or to the cause of such injury, that subjects them to a joint action.

All that can be truly said, in my opinion, of the defendants is, that each company is liable for its own acts or defaults, or the acts or defaults of its own servants.

The very basis and ground of action here, is the negligence of the defendants’.seivants. By whatever name the actiou be called, (with reference to our former legal nomenclature,) whether trespass or case, it is the negligence of their servants alone that makes the defendants liable at all. Had there been no negligence there would be no right of action. Even if the collision, with all its consequences to the plaintiff, had happened, there would have been no liability without such negligence.

How, however dif6.cult.to separate the consequences of the separate negligence of either defendant, yet each is liable, or responsible, in respect of its own negligence, and for its own negligence only.

The relation of the two companies to the plaintiff and to the alleged wrong are wholly different, and exhibit the defendants in an entirely several or separate character. '

A mutual violation of a joint duty makes both parties liable, and each liable for such violation by the other.

How there was no joint duty. The duty of the Hew York and Harlem Railroad Go. to the plaintiff arose from their undertaking to carry him. The only duty owed to him by the Hew York aud Hew Haven R. R. Go., was a duty which they owed to all mankind, so to conduct their business that no one should be injured by their culpable act or neglect.

The nature and extent of the duties of the companies respectively was different. The Hew York and Harlem R. R. Go. was bound to exercise the highest prudence, and the utmost care and skill, which was, under the circumstances, practicable, and which the most prudent person would use for the safety of those entrusted to them for carriage.

The Hew York and Hew Haven R. R. Go. were only bound (in their relation to the present plaintiff,) to exercise ordinary care and prudence, in view of the nature of the business in which they were engaged, and the circumstances in which they were acting.

So, also, defendants uniting in a joint act are liable jointly for the injury caused thereby.

But if there be no common purpose, the act is not joint unless there is an actual union of the parties in the act complained of; indeed, the actual union of the parties in the act complained of, in general creates a joint liability, because such actual union is evidence of the common intent. But if it were conceded that in such case it would be none the less joint because there was no intent to do the act, when, in truth the act is single, and-both parties act together in it, still, if such a case can be supposed, it would fail to illustrate the present case, for here it is not an act, but a neglect, that constitutes the ground of liability. In this there is no union of the parties if the common intent be wanting.

The neglect of the one company is not here the neglect of the other; nor had the one any agency in producing the neglect of the other. The negligence of either is, as a ground of liability, entirely independent of the other, not causing, nor tending to cause, the negligence of the other.

If either are liable for the collision and its consequences, it is not because the collision and its consequences are a ground of legal liability, but because the collision resulted from the negligence—that, and that only, being the ground of liability. The circumstance that the consequence of the several neglect of the two defendants produced one result, to wit, the collision, is a merely incidental and casual coincidence, and does not alter the nature or essential character of the cause to which the liability is to be referred.

So there is joint liability for an act or acts done by each in furtherance of a common purpose. This is clearly so when there is a common intent to injure. It may, however, be conceded that, (even in the absence of an intent to injure) the liability is joint if the injury result from an act or acts done in execution of their concurring intent to do, or to omit to do, precisely what was done or omitted. Here no such ground of liability is even claimed. Each company was prosecuting its own separate business, with wholly distinct and unconnected purposes, in no wise contemplating the act or default of the other, and, indeed, in ignorance of the acts or neglects of the other, until every thing had been done or neglected which involves them in liability at all.

Again, there may be a joint liability for the negligence of either, when both are at the same time engaged together, each contributing to the accomplishment of a common design. It is not necessary to seek illustrations of this proposition or to define strictly the narrow limits to which it must be confined. Instances might be suggested that would come within the definition, and yet in which such joint liability would not result, and others in which it would clearly follow. But here there is no claim, and can be none, that there was any common intent or purpose-whatever.

In the cases above supposed, the defendants are mentioned as if acting or neglecting in their very persons, and not by agents or servants; and in some of the cases stated there might be no liability at all by the principal, for the acts supposed, if done by servants; but it is not material to my purpose to discriminate, as the propositions are stated merely to define the ground of joint liability and the contrary.

Here, the ground of the liability of each being negligence, each is liable for the fault of their own servants, and only for such fault.

And the companies were acting wholly independently of each other.

They were not discharging any common obligation to the plaintiff.

They violated no common duty.

The fallacy in the claim that the liability is joint results from regarding the collision as the ground upon which the defendants are to be charged. It is not in respect of the collision, which is itself a consequence, but in respect of the negligence that caused a collision, that either are hable.

The culpa causans is separate in respect to each, and whether injury results concurrently or not, cannot change their relation to each other. The fact of liability for the consequence exists, in a strictly logical sense, prior to the consequences themselves. The consequences are only considered in determining to whom and to what extent that liability subjects them.

The fallacy is rendered more easy of adoption from what is the peculiarity and only incidental feature of the present case, viz., that the injury sustained by the plaintiff is single, so that it is impossible to say how much of the injury resulted from the negligence of the one company, and how much from that of the other. This, certainly, cannot alter the principle upon which the liability of the parties depends. Its only result may be, that in an action against either, the defendant may, ex necessitate be subjected to the whole consequences of the occurrence.

Suppose that, instead of injuring a person, the respective colliding trains had, upon the occasion in question, injured some inanimate object of value interposed between them, but so that the injury-received from the- force of-the one train could be distinguished from the injury received from the force of the other. Can it be doubted that each company would be liable for the injury done by its own train, and for that injury alone? I think not.

Each would be liable for negligently and violently running its train against the object injured, and for the injury thus produced. In principle, I think the present case is not different.

In neither case is either liable for the negligence of the other, nor, in principle, for the consequences of the negligence of the other.

The views above expressed find corroboration in some cases, which I mention briefly:

In Guille v. Swan (19 J. R. 381) the defendant, an aeronaut, had ascended in a balloon, and descended into the plaintiff’s garden. When he descended his body was hanging out of the car in great peril, and he called for help in a voice audible to the crowd, who were pursuing. They broke down the plaintiff’s fences, and came to the defendant’s relief, doing damage; and the defendant was held liable for the whole trespass. The court, denying that the defendant was free from liability for the acts of the crowd, merely because he. did not intend that they should commit the trespass, or because his descent in that place, and its consequences, were wholly involuntary, say, “ To render one man liable, in trespass, for the acts of others, it must appear either that they acted in concert, or that the act of the individual sought to be charged ordinarily and naturally produced the acts of the others.”

In Williams v. Sheldon, (10 Wend. 654,) which was an action against eight defendants, for cutting and carrying away logs from plaintiff’s lot, there was evidence to show that the defendants did not all work together, nor share alike in the profits of the spoliation. The rule of liability governing the case is declared to be this: “ To entitle the plaintiff to recover against all the defendants as joint trespassers, it must appear that they acted in concert in committing the trespass; if some aided and assisted the others, —or some employed the others—or assented to the trespass committed by the others, having an interest therein, all are jointly guilty. But if any were acting separately, and for themselves alone, they are not jointly liable with the others.”

The case of Van Steenburgh, et al. v. Tobias, (17 Wend. 562,) and Auchmaty v. Ham, (1 Denio, 495,) appear to me to bear very strongly upon the case under consideration. The first was an'action against two defendants, each of whom was owner of a dog, to recover against them jointly for the injuries done by the two dogs to the plaintiff’s sheep. The injury was done by the two dogs at the same time, both uniting in the mischief. The court held that the action would not lie; that the case showed only a separate trespass, or wrong, against each defendant’s dog.

The case of Russell v. Tomlinson, et al., (2 Conn. 206,) precisely similar, is cited with approbation, and the language of the court in that case is adopted: “ Owners are responsible for the mischief done by their dogs, but no man can be liable for the mischief done by the dog of another, unless he had some agency in causing the dog to do it. Each owner is liable for the mischief done by his own dog.”

In Auchmaty v. Ham, the Judge at the trial had charged that the defendant was liable for the injury done by two dogs, though he was the owner of one only. The judgment was reversed, and the court held that each owner is only responsible for the mischief done by his own dog. They notice a feature in the case which is also characteristic of the case now under consideration, and refer with approbation to the above cases, and to Adams v. Hall, (2 Verm. R. 9,) where they say “ the difficulty in ascertaining the proportion of damage done by each dog, furnishes no reason why one man should be accountable for the mischief done by the dog of another.”

It is a familiar and well-settled rule, that a joint action cannot be maintained against two for slander, by words spoken by each. And yet, if the concurrence of the tWo acts, or neglects, complained of, and the difficulty of separating the injury produced by each, so as to say how much of the damage was imputable to either, were any sufficient reason for making the liability joint, it would be easy to suggest many cases of slander, under circumstances that would warrant its action; for when there be slander by several, it may be wholly impracticable to determine how much of the injury which is sustained in loss of good name results from the slander by one, or how much by the slander of the other; and it is generally clear, that when two or more conspire together to injure another, by defaming his character, they become jqintly liable. .Each is liable for the act of the other, done in pursuance of the common intent. This distinction in reference to slander by two or more, illustrates the proposition that, when the acts are several, the liability depends upon the question whether there is a common intent or purpose.

Suppose two separately and falsely represent a person to another as worthy of credit; in reliance upon the representation of both, he sells such person goods; and suppose it be true that no such sale would have been made had not the representation by the one been corroborated by the like representation by the other, I deem it quite clear that no joint action will lie, without proof that the defendants conspired together to procure the credit, and effect’the deceit.

In what I have said in relation to the necessity of showing a concurring purpose to sustain a joint action against the defendants, it is not intended to insist that where two or more unite in an act of trespass, the motive or intent with which they commit the act is material. The act may be committed in the belief that what is done is lawful, and be none the less a joint trespass, and, in the language of the court in Guille v. Swan, above cited, “where an immediate act is done by the co-operation or the joint act of several persons, they are all trespassers and may be sued jointly or severally, and any one of them is liable for the injury done by alland although, in that case, the defendant was held liable for the acts of others, though wholly without wrongful intention on his part, it was because his act would ordinarily and naturally produce, and did produce, the acts of the others.

In the present case the liability of neither defendant is founded in any act of the defendants or of either of them, but in negligence only, and the negligence of either in nowise tended to produce negligence in the other.

It is, doubtless, true that when a negligent act is the immediate and direct cause of an injury, the action of trespass vi et armis would lie. It was so held in Percival v. Hickey (18 J. R. 257). That was a case of gross negligence on the part of the defendant m person, in running down the plaintiff’s vessel; but allowing to a plaintiff that form of action did not change the essential ground of the defendant’s liability. That was his negligence, without that he was not liable, although the plaintiff’s vessel was run down. In order of proof it might be sufficient to show that his vessel was run down by another in the charge of the defendant. But when all the facts were developed, the defendant’s liability, in whichever form the action was brought, rested on his negligence in managing his vessel.

It in nowise follows that if the negligence of another person in managing another vessel, wholly independent of the first, without any common purpose, concert or connection, had, by mere coincidence, contributed to the disaster, a joint action of trespass or a joint action in any form could have been sustained against them.

It is by treating the collision as the forcible act warranting the action of trespass, and the defendants as actors in the collision itself, that it seems plausible to say the defendants have co-operated in producing the injury and are, therefore, jointly liable. I have already said that to say that either defendant is liable to this plaintiff, on the ground that their trains collided, is fallacious. They are liable, if at all, because, and only because, of their several negligence, which resulted in the collision, and in that negligence there was not any community between them. Besides this, the case referred to, and those cited therein, which authorize a plaintiff, at his election, to sue in case for consequential damages for the negligence, or in trespass for the direct and immediate cause of injury, are cases where, in truth, the defendant was present acting in the very matter, and if not so present, but the act resulted only from the negligence of his servant, case only would lie against him.

In every aspect of the rule, it seems to me that whatever form of remedy may be resorted to, it is negligence only which is the ground of his liability. But the suggestion last made brings into view another reason for denying the liability of the defendants to a joint action, which is quite conclusive, and this is that in an action against a master for an injury resulting from the negligence of his servant, no action of trespass would lie. The action is for consequential damage, and is founded in negligence only. The case last above referred to exhibits this rule in many of the cases mentioned therein, and others might, if necessary, be added. It is not obvious to my mind that one master under the form of a joint action can be made liable for the negligence of another man’s servant, over whom he has no control, whom he has not selected, with whom he has (in the matter in which the servants are employed) no connection, and whom but for the negligence of his own servant there could be no pretence that he was liable for that of the other.

I can understand how a man may be properly responsible for the negligence of his own servant and for all its consequences, but that the coincidence of that negligence, with the negligence of another man’s servant, should make him responsible for the negligence of the latter, as if the action be joint he must be, I do not understand and cannot concede.

True it has been held that a corporation is, in some cases, liable in trespass, for acts which, in one sense, it does by its servant. So may an individual be liable in trespass for acts of his servants, done by his command or in which he aided, or for trespasses which are the immediate and direct consequence of the servant’s obedience.

A corporation can, in one sense, only act by agents and servants; but it can and does exercise strictly corporate acts, and in them it acts or speaks as truly as does an individual in his proper person, and for them if done or authorized to be done it will be liable as an individual is liable. Whatever, in the mode the law of its organization prescribes, the 'corporation does or authorizes, is the act of the corporation itself, and may doubtless be the subject of the same modes of redress as if it were the act of an individual.

But the negligence of its servants is not such an act; if it be conceded that they are liable as an individual would be under like circumstances, it proves nothing in this case, for, as above suggested, the ground of the liability of an individual, would be that as master he is liable, consequently, for and because of the negligence of his servant, and only upon that ground; and the observation therefore recurs, they are not liable for the negligence of the servants of another corporation, pursuing a distinct, inde-i pendent employment, engaged in the performance of a separate duty, with whom they have no connection, and over whom they have no manner of control.

I am aware that ingenuity might suggest examples in which it would be difficult to say whether the liability of two persons is joint or only several, or rather cases, where the only proofs which could probably be given, would render it difficult to apply this rule. As where two men, each in pursuit of his own private revenge, or for the gratification of his own malice, strike another at the same time, without concert or even knowledge of the other’s intention; or two men at the same moment apply fire to another’s house in different places, each in like ignorance of the acts or doings of the other, and it burns down. Other examples might be suggested, and often the coincidence of time, place, and act, would raise a presumption of a common purpose; and it may often, where the acts are clearly several, be practically impossible to say exactly how much damage is caused by the wrong of one defendant and how much by the fault of the other.

But such cases furnish no reason for a departure from principle.

I cannot resist the conclusion that a joint verdict against the present defendants cannot, or I should more properly say, ought not to be sustained. _ ;

I cannot concur in the opinion that the Judge was correct in charging that “ the negligence of a plaintiff that goes to excuse the defendants, must be such negligence as contributed to the accident that caused the injury.”

In another form the proposition is stated thus: “the general rule is, that where a party by his own negligence contributes to bring about the occurrence by which the injury is effected, he cannot recoverand lest the meaning of “ occurrence” should be misunderstood in this instruction, it is added by way of explicit direction, “standing on the platform of the car could in itself have had no effect in producing the collision by which this injury was effected; of itself, therefore, it would be no defence to the company in case of an accident occurring.”

By this, the jury were given to understand, that however gross the negligence of a person may be in exposing himself to injury, if that negligence does not contribute to the other cause of injury, it is no bar to the plaintiff’s recovery, however true it may be that if the plaintiff had exercised ordinary care he would have received no injury.

I do not so understand this rule; examples may be suggested yrhich illustrate its error.

A foot passenger in the streets of a city, where the sidewalk is safe and convenient, voluntarily exposes himself by walking in the carriage-way; another negligently leaves his horse unattended an4 ill secured. The horse runs away and overturns a vehicle upon the negligent passenger, who is unconscious of his approach. The negligence of the latter neither causes nor contributes to the running away of the horse nor to the overturning of the vehicle: can he recover damages for his injury ?

Again, while thus carelessly passing along the street, in utter disregard of the dictates of ordinary prudence, two vehicles, by the negligence of some other persons, are brought in collision, and he is injured, by the overturning of one vehicle, or by its being thrown against him. His being in the carriage-way “ could in itself have had no effect in producing the collision by which the injury was effected.” Does it, therefore, form no obstacle to a recovery of damages ?

Again, one is loitering carelessly upon and about the tracks of a railroad, when, by some negligence, a car is overturned upon him. Such negligence of the victim certainly does not contribute to the accident, in the sense in which the term accident is used in this charge; it did not produce, nor tend to produce, the overturning of the car; does it furnish no reason for leaving him to bear the consequences of his own folly ?

I apprehend the inquiry is, whether his injury is attributable to his own carelessness; whether his negligence contributed to his hurt?

The relative duties which mankind owe to each other, do not proceed upon the idea that any are infallible. All may err; and no one should ask indemnity against his neighbor’s unintentional mistake, where, but for his own carelessness, he would not have been injured thereby.

In the case under consideration what caused the injury ? "Not the negligence of the one defendant alone. But for the negligence of the other, there had been no accident. Not the collision alone, (if the plaintiff’s standing on the platform was negligence,) for if the plaintiff had exercised ordinary prudence, he would have received no harm.

The plaintiff here says, and the charge adopts his claim, “No matter how negligent I was, if there had been no collision I should not have been hurt, and I did nothing tending to produce a cob lision.”

The New Haven R. R. Co. may retort with equal plausibility, no matter how negligent we were, if you had not been upon the platform you would have sustained no damage, and we in nowise consented or contributed to your needless exposure to injury.

==" The causes of this injury are threefold. If it was an act of negligence in the plaintiff to ride upon the platform, there were three parties contributing to the injury. The injury may, with equal propriety, be said to be the consequence of the negligence of either, and it was clearly the result of all combined.

It is claimed that, even if there be inaccuracy in the instruction referred to, the special finding of the jury relieves the case from any claim that injustice was done to the defendant, by rendering the same result inevitable had the charge, in this particular, been free from liability to criticism. That the jury have found that there was no seat for the plaintiff inside the car on which he stood, and no time was afforded him, after he got upon the platform, to find a seat in another; and, under the general instructions in the charge, the jury may be assumed to have found that he was not forbidden to stand where he was. I admit that there is force in this suggestion; but there was evidence tending to show that, in truth, these facts had nothing to do with the conduct of the plaintiff in this respect. The defendants gave evidence that the plaintiff was a commuter—a “ constant rider’’—that the front car wa| usually full when the train reached the station at which h'e was in the habit of getting on; that there was room in the rear car; that he was in the habit of riding on the platform daily. The inference from the evidence is very strong, that he rode there from no necessity, but from choice—from a foolish desire to be on the foremost car at all hazard.

It by no means follows from the verdict that he had not abundant reason, from the habitual state of the train in which he daily visited the city, and the usual course of filling the forward cars before" his station was reached, to know that there was room enough (as in fact there was) in the rear cars; nor that he had not time enough, and opportunity enough, to have entered those cars at the station where he got upon that train. The request of the defendants to the Judge, to charge that it was his duty to do so, if he had that knowledge of the usual" condition of the train to know where to find the vacant seats, seems to me reasonable, and that the defendants might require such instruction to be given.

It is suggested that the case of Carroll v. The New York and New Haven R. R. Co., sustains the views expressed in the charge in this case. Doubtless there are some things in the opinion in the case which seem to conflict with the views I have expressed. That case does not, I think, go so far as the propositions I have been considering. That case rested, in no slight degree, upon the supposed consent of the defendants to the plaintiff’s riding in the baggage car. The defendants are deemed not only to have waived the benefit of the statute, but to have virtually conceded to the plaintiff the propriety of his riding in the place and manner in which he was riding.

Perhaps a still more important feature in that case was, that in the conduct of the defendants’ servants there was gross negligence, and not only gross negligence in itself, but towards a person to whom they were under a clear legal duty to exercise the utmost care and caution; and the collision arose from two trains of the same company, running in opposite directions, coming in contact.

/X* I by no means insist that the want of ordinary care on the part of a passenger will justify or relieve a railroad company from liability for gross neglect, evincing a reckless or wanton disregard for the life or safety of their passengers.

In the aspect last suggested, the case of Carroll v. The New Haven and New York R. R. Co. is not in principle unlike the more recent case of Williams v. The New York and Harlem R. R. Co., in which it was held, in the Court of Appeals, that even though the plaintiff had carelessly gone upon their track, or had, through negligence, fallen thereon, it was not error to charge that “ if the driver could have stopped the car before it went over him, the plaintiff was entitled to recover.” In that case, the proof was clear that the driver saw him; and the court held, that his neglect to stop the car, when it was in his power to do so, after he saw the peril to which the plaintiff was exposed, was an act of gross, wanton, and even reckless disregard of human life.and safety, and could not be excused by the imputation of negligence to the plaintiff.

With the principle of these cases, my view of the question in this case does not conflict. There is here, upon the evidence, no just ground for imputing gross negligence to the defendants. The case was not submitted to the jury upon any such idea; and the general doctrine that, in the absence of gross negligence, the plaintiff, in order to recover, must be clear of any negligence on his own part contributing to the injury complained of, is not at all questioned in the case last referred to.

The considerations which appear to have influenced the charge to the jury, here arising from the omission of defendants (the Harlem Company,) to post the notices required by the statute in the passenger oars; their neglect to delay at the station where the plaintiff entered the train till he was provided with a seat; their omission to furnish proper and suitable accommodations for the plaintiff inside the cars, were all presented to the jury as material questions affecting the defendants’ liability, and connected with them was the duty of that company to exercise the utmost care and prudence to protect their passengers; and these considerations are,' in effect, made to bear directly upon the question of the liability of the other defendant, who had no concern therewith, and who ought not to be in any manner affected thereby.

This illustrates what has already been suggested of the impossibility of joining the two defendants in the same action, or more strictly, in the present state of the pleadings, the impossibility of a joint verdict and judgment against'the two defendants.

And whatever may be said of the Harlem R, R. Co., founded upon their neglect to provide proper seats, or put up proper notices, surely the New York and New Haven Company are not responsible for this; if this negligence aggravated the fault of the Harlem Co., the plaintiff should be turned over to them for redress. The New Haven Co. may, and do, with none the less force and propriety, refer to the plaintiff's negligence as causing his own injury, when they truly say to him that but for your folly the injury would not have been received.

I cannot resist the conviction, that these corporations engaged in great public enterprises, tending in a high degree to the pu'unu good, conducting their business necessarily at a very considerable hazard, as well from its nature ás from the demand of the community upon them in respect to promptness and speed; wholly unable to carry on the business at all except by employing agents and servants in a considerable number, and, therefore, exposed to suffer from their failure to use at every moment the utmost possible prudence and foresight, I say I cannot resist the conviction that, while they are, probably, held to a stringent rule, and required to use extraordinary means to protect human life, they are also entitled to require at least ordinary care from those they transport. That there is, in this respect, some slight reciprocity of duty which binds the passenger to take care that when an accident does happen, its consequences are not aggravated by his own negligence and folly.

However this may be, as between the passenger and the company who undertakes to carry him, and guarantees to him all the security which human skill and foresight, properly exercised under such circumstances, would provide, it is saying only what appears to me to have often been held, and properly held, that as to those who owe him no such high and peculiar duty, he cannot claim to recover where he has, by his own negligence, contributed to his hurt.

Upon any other view of the subject, the plaintiff might have voluntarily placed himself in the most exposed condition of the Harlem train, nay, even upon the engine itself, and if through any negligence, however slight, on the part of the New Haven Company, they had caused a jar sufficient to throw him to the ground and injure him, he could recover. He could even in such case say, as the plaintiff was by the charge permitted successfully to say here, my being on the engine, however dangerous however it exposed me to peril, did not cause the jar which caused me to fall.”

My conclusion is, that no joint verdict and judgment is proper in this case, and also, that the joint verdict which was rendered, was obtained under instructions which were erroneous as to both of the defendants, but which were especially so as to the New Haven Railroad Company, as well as respects their liability to a plaintiff, who was himself guilty of negligence, as also in charging upon them a liability which if it existed as" to the other defendant, resulted from the peculiar relations of the latter to him, and their omission of duty in particulars over which the New Haven Company had no control, to which they in no raapner contributed, and for which they are not liable.

I think, therefore, that a new trial should be ordered,