Ames, C.
A bare outline of the facts will suffice for an understanding of the problems presented for solution in this case.
William Rogers was engaged as foreman of a company of laborers, one of whom was the plaintiff, in the demolition of a building belonging to the defendant railway company and standing on its right of way. It is alleged that in the construction of the building, fourteen years previously, there was a defect of a character affecting its stability to such a degree as to render it more easily destructible than it would otherwise have been, but it is not [581] claimed that such alleged weakness was concealed or rendered the building unsafe for the purposes for which it was erected, or diminished its durability under ordinary circumstances, or that it was constructed with a view to its future destruction, or that, if it had been so, the company would have been under any duty or obligation to its employees or the public to render the work of demolition unnecessarily difficult. But it is alleged that Rogers negligently commanded the plaintiff to engage in the work of wrecking at a place rendered dangerous by means of such weakness, and that as a consequence thereof the building, while the plaintiff was so employed, unexpectedly gave way, precipitating him to the ground and inflicting injuries upon his person.
This is an action for damages brought against the company and Rogers jointly. There were separate answers which for the purposes of the present discussion may be treated as consisting severally of a general denial accompanied by a plea of contributory negligence.
The court instructed the jury that they were at liberty to find in favor of either party and against the other, and they accordingly returned a verdict in favor of Rogers and against the plaintiff, but in favor of the plaintiff and against the company for substantial damages. The instruction was excepted to, and the plaintiff and the company prosecute separate petitions in error. Before filing its motion for a new trial, the latter filed a motion for a judgment in its favor on the ground that the verdict in favor of Rogers is equivalent to a special finding in its favor that there was no actionable negligence, and is inconsistent with the general verdict against it, which it therefore overrides, entitling the company to judgment under the statute governing such cases. The motion was overruled. The plaintiff excepted to the instruction and assigns it for error in his petition in error and brief, but he was not prejudiced by it unless by reason of it he was deprived of a verdict to which otherwise he was or would have been entitled and, therefore, presumably, would have [582] obtained. He also assigned in his brief that the court erred in refusing to give three instructions requested by him, but he presented no argument in support of the assignment either in his brief or orally. Under such circumstances we do not feel obligated to enter upon a critical examination of them, and it may suffice to say that after reading them we are of opinion that the court did not err in their refusal in the form in which they were drawn, and that so much of them as appears to us to be pertinent to the issues involved seems to us to have been brought to the attention of the jury by instructions which were given by the court upon his own motion.
The only other complaint in his petition in error is by way of quotation from the opinion of this court in Gerner v. Yates, 61 Neb. 100: “The verdict is an anomaly; it is in irreconcilable conflict with itself. It is in effect a declaration by the jury that the material allegations of the petition are both true and false”; but no specific assignment to this effect is to be found in the motion for a new trial, or in the petition in error, and the opinion cited does not hold that such an apparent absurdity is necessarily fatal to both verdicts, except in instances where both are based upon the same conflicting evidence, and in that case the verdict in favor of one only of the defendants was set aside because, as the opinion says, its correctness was not conclusively established by the evidence. But in the case at bar it is not contended that there is not sufficient evidence to support the verdict in favor of the defendant Rogers. All that is urged is that there is some slight contradiction upon a not vitally ma-' terial point. Why then should he be deprived of the fruits of his just victory because the jury absurdly condemned another whom, upon the same evidence, they might with equal propriety have exonerated? But counsel says that the court erred in expressly advising the jury that they were at liberty to commit such an absurdity and that but for this error the plaintiff might have recovered a verdict against both defendants. True, but it is at least [583] equally probable that in such a case he would not have recovered against either, and neither supposition goes any distance at all toward an answer to the question whether the error was prejudicial. That question can only be answered, as it seems to us, by ascertaining, as in other cases, whether there is any other prejudicial error and, if none, whether either verdict is alone sustained by the evidence.
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Ames, C.
A bare outline of the facts will suffice for an understanding of the problems presented for solution in this case.
William Rogers was engaged as foreman of a company of laborers, one of whom was the plaintiff, in the demolition of a building belonging to the defendant railway company and standing on its right of way. It is alleged that in the construction of the building, fourteen years previously, there was a defect of a character affecting its stability to such a degree as to render it more easily destructible than it would otherwise have been, but it is not [581] claimed that such alleged weakness was concealed or rendered the building unsafe for the purposes for which it was erected, or diminished its durability under ordinary circumstances, or that it was constructed with a view to its future destruction, or that, if it had been so, the company would have been under any duty or obligation to its employees or the public to render the work of demolition unnecessarily difficult. But it is alleged that Rogers negligently commanded the plaintiff to engage in the work of wrecking at a place rendered dangerous by means of such weakness, and that as a consequence thereof the building, while the plaintiff was so employed, unexpectedly gave way, precipitating him to the ground and inflicting injuries upon his person.
This is an action for damages brought against the company and Rogers jointly. There were separate answers which for the purposes of the present discussion may be treated as consisting severally of a general denial accompanied by a plea of contributory negligence.
The court instructed the jury that they were at liberty to find in favor of either party and against the other, and they accordingly returned a verdict in favor of Rogers and against the plaintiff, but in favor of the plaintiff and against the company for substantial damages. The instruction was excepted to, and the plaintiff and the company prosecute separate petitions in error. Before filing its motion for a new trial, the latter filed a motion for a judgment in its favor on the ground that the verdict in favor of Rogers is equivalent to a special finding in its favor that there was no actionable negligence, and is inconsistent with the general verdict against it, which it therefore overrides, entitling the company to judgment under the statute governing such cases. The motion was overruled. The plaintiff excepted to the instruction and assigns it for error in his petition in error and brief, but he was not prejudiced by it unless by reason of it he was deprived of a verdict to which otherwise he was or would have been entitled and, therefore, presumably, would have [582] obtained. He also assigned in his brief that the court erred in refusing to give three instructions requested by him, but he presented no argument in support of the assignment either in his brief or orally. Under such circumstances we do not feel obligated to enter upon a critical examination of them, and it may suffice to say that after reading them we are of opinion that the court did not err in their refusal in the form in which they were drawn, and that so much of them as appears to us to be pertinent to the issues involved seems to us to have been brought to the attention of the jury by instructions which were given by the court upon his own motion.
The only other complaint in his petition in error is by way of quotation from the opinion of this court in Gerner v. Yates, 61 Neb. 100: “The verdict is an anomaly; it is in irreconcilable conflict with itself. It is in effect a declaration by the jury that the material allegations of the petition are both true and false”; but no specific assignment to this effect is to be found in the motion for a new trial, or in the petition in error, and the opinion cited does not hold that such an apparent absurdity is necessarily fatal to both verdicts, except in instances where both are based upon the same conflicting evidence, and in that case the verdict in favor of one only of the defendants was set aside because, as the opinion says, its correctness was not conclusively established by the evidence. But in the case at bar it is not contended that there is not sufficient evidence to support the verdict in favor of the defendant Rogers. All that is urged is that there is some slight contradiction upon a not vitally ma-' terial point. Why then should he be deprived of the fruits of his just victory because the jury absurdly condemned another whom, upon the same evidence, they might with equal propriety have exonerated? But counsel says that the court erred in expressly advising the jury that they were at liberty to commit such an absurdity and that but for this error the plaintiff might have recovered a verdict against both defendants. True, but it is at least [583] equally probable that in such a case he would not have recovered against either, and neither supposition goes any distance at all toward an answer to the question whether the error was prejudicial. That question can only be answered, as it seems to us, by ascertaining, as in other cases, whether there is any other prejudicial error and, if none, whether either verdict is alone sustained by the evidence.
In a case like the one at bar, and in most cases of like kind, sufficiency of evidence as to one verdict is at the expense of insufficiency as to the other, and vice versa, and the true rule, we think, is, when the evidence is not conflicting or substantially so, to uphold the verdict having adequate support and to set aside the other, and so the court may avoid supplementing the absurdity of the jury with one of its own. And this is what the court in fact did in Gerner v. Yates, supra, although the opinion does not express the matter quite clearly to that effect. In the present instance it is not contended, nor could it successfully be, that if Rogers was the sole defendant the verdict in his favor would fall to the ground for lack of support by the evidence, and it is quite clear that a verdict against him would lack sufficient such support, nor can we understand why it should suffer that fate solely because of the joinder of his codefendant. His conduct, which was confined strictly to the line of his duty and employment, was the sole subject of investigation. He, was not merely an agent, in a loose or general sense, but for all practical purposes he was the company, representing it, as respected the matter in hand, as fully and completely as, and doubtless more efficiently than, would the, president and board of directors or the, assembled stockholders have done if present. If the company was guilty of negligence it was his guilt, if it was innocent it was because he Avas free from blame. The law is firmly established that, if under such circumstances a suit against the agent alone had resulted in a judgment in his favor, it would have been a bar to a subsequent action against [584] his principal upon the same cause of action. Doremus v. Root, 23 Wash. 710, 54 L. R. A. 649, and cases cited in elaborate note. In the case named, which was in many respects similar to this, the supreme court of Washington set aside the judgment against the principal and rendered a judgment absolute in its favor, solely because there was no appeal from that in favor of the agent, saying that if there had been such an appeal there would have been no hesitancy in reversing both judgments and remanding the cause for a new trial. Rut as we have already said, we can see no justice or expediency in such a course. Although the instruction was erroneous because inapplicable to the character of the case at bar, it did not preclude the plaintiff from a full and fair investigation of, and unprejudiced verdict upon, all the issues involved. If he had succeeded upon sufficient evidence against the agent, his verdict would, we think, have established the liability of the principal as well as that of the agent, notwithstanding a verdict, had there been one, in favor of the former, because the former was a party to the suit and participated in the investigation of the transaction out of which the liability would have arisen. The company and Rogers were privies in a sense other and different from that in which that term is used in ordinary cases of alleged joint tort-feasors. If the principal had been sued alone, it might have bound the agent by the result by notifying him to appear and participate in the defense (Doremus v. Root, supra), and a corresponding obligation must, as we think, arise out of the participation of the principal as a party in a suit against the agent. And, reciprocally, a verdict and judgment in favor of the agent, free from error, and such as the evidence alone supports, must exonerate the principal.
We recommend, therefore, that the judgment against the railway company be vacated and set aside and the action as to it be dismissed, and that the judgment in favor of Rogers be affirmed.
Letton and Oldham, CO., concur.
X, Inconsistent Findings: Review. Two inconsistent findings of a jury upon the same issue, if based upon conflicting evidence, nullify each other. Such findings will not support a judgment. If one is the only finding possible under the evidence, a judgment thereon in favor of one of two joint defendants will be sustained, and a finding upon the same issue against the other defendant, being wholly unsupported by the evidence, will he reversed.
2. Reversal: Practice. It is not the practice of this court to dismiss a law action upon reversing a judgment of the district court for want of evidence to sustain it. The cause is remanded to the district court for further proceedings.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment against the railway company be vacated and set aside and the action as to it be dismissed, and that the judgment in favor of Eogers be affirmed.
Judgment accordingly.