City of Kansas v. File

55 P. 877, 60 Kan. 157, 1899 Kan. LEXIS 46

• Court: Supreme Court of Kansas
• Decided: January 7, 1899
• Docket: No. 11009
• Status: Published

Opinions

The opinion of the court was delivered by

Doster, C. J. :

This was an action brought by Grace File, a little girl, against the city of Kansas City, Kan., and the Consolidated Electric Light and Power Company, to recover damages for injuries sustained on account of the negligence of the defendants in allowing one of the conducting wires of the light company to break and f.all to the street, and with which, while remaining in the street, and when-charged with an electric current, she came in contact^. While not pertinent to any legal aspect of the case, it is interesting to note that the broken ends of the wire were about eighty feet apart, one of them lying upon the ground, the other suspended in the air, or possibly resting against one of the supporting poles. This breakage in the wire, as electricians explain, and as is common observation, destroyed the continuity of the circuit so far as the usual conducting medium was concerned. However, the electric current was on at the time of the little girl’s injuries, and therefore must have been passing between the broken ends of the wire through the earth and the supporting pole spoken of, or through space without any visible conducting medium — a rare, if not hitherto unobserved, phenomenon, as experts stated. The plaintiff ignorantly and innocently took hold of the end of the wire lying upon the ground, and was severely and ^permanently injured by the consequent shock. A verdict -and judgment were rendered in her favor. The defendants filed separate motions for a new trial. That of the electric-light company was sustained, that of the city overruled, and it, therefore, prosecutes error to this court.

The first claim of error and the one principally discussed is the misjoinder of the city and the light company as defendants. It is contended that the obligation of these two parties to prevent the electric wires from becoming obstructions or agencies dangerous to the people of the city proceeds from different sources ; that no relations of contract or of public or municipal policy existed between them making the care of the wires a joint duty; that no obligation rested upon the city to inspect the wires of the light company or to superintend the business of lighting the streets so as to charge it jointly with the company for damages resulting from the latter’s delinquencies. We are constrained, however, to take a view of the rule of practice different from that taken by the city. . ■

There is no question but that separate actions might have been maintained against the defendants and separate judgments recovered. However, but one satisfaction could be had. The policy of the code is to settle the whole subject-matter of any controversy in one action. This rule of policy is collectible out of several of the sections relating to the joinder of parties and of causes of action. Whatever may have been the rules of practice at common law, the code, which in legal as well as in equitable actions seeks the adjustment of interrelated controversies in a single suit, lends strong countenance to the joinder of defendants in such cases, if the plaintiff so elects. But aside from the rules of the code, and going to the metaphysical question of relationship between the two defendants, there was a community of action, or rather of negligent omission, upon their part. Each was under obligation to see that the electric wire in question did not fall down and remain upon the ground — the city because of the general oversight of its streets which the law requires it to take, the light company because of its obligation to prevent its property from becoming a dangerous menace to the public safety. If it be admitted that these obligations are different, or spring from different sources, they nevertheless concur to one end — to the end of avoiding, among other and similar consequences, just such injuries as the plaintiff sustained. The concurring neglect of these respective obligations produced a single consequence and must therefore be viewed as joint and mutual. The petition alleged that the wire in question broke and remained down for three weeks before the accident occurred. This was time enough to charge the city, as.well as the company, with knowledge of its condition, and from which its concurrent disregard of its duty is plainly to be inferred. Inasmuch as the duty in question rested upon both city and company, and inasmuch as each possessed knowledge of the other’s failure to discharge the obligation, it can be fairly said that each so concurred in the other’s negligence as mutually and jointly with it to conduce to the plaintiff’s injury.

Error is claimed because of the refusal of the court to grant a new trial to the city while allowing one to the light company. The case against the two defendants was of course tried as a single action. What the reason was for awarding a new trial to one while refusing it to the other is not satisfactorily shown by the record. Counsel in argument say the court thought that the evidence of the light company’s ownership of the line of wire upon which the accident occurred was not satisfactorily established. If so, its action was justifiable. Be that as it may, no legal reason exists why a new trial might not be granted to one defendant and denied to the other. The plaintiff could have prosecuted actions against them separately and recovered separate judgments. Neither one had the right to insist upon the joinder of the other with it, and in fact, as already stated, the city objected to the joinder of the light company with it. Inasmuch as separate actions could have been maintained against each of the defendants, neither one of them had the right to insist that the other be retained in the case until final trial and judgment. The plaintiff in error in support of its position cites the cases of Raymond v. Keseberg and another, 83 Wis. 303, 54 N. W. 612; Everroad et al. v. Gabbert, 83 Ind. 489; and Albright v. McTighe, 49 Fed. 817. The reasoning of these cases, however, does not commend itself to us.

Many other claims of error are made. We have carefully examined all of them, but do not find any of them well founded. The judgment of the court below is therefore affirmed.

Johnston, J., and Allen, J., concurring.