Flaherty v. Minneapolis & St. Louis Railway Co.

Appeal by the Minneapolis & St. Louis Bailway Company from an order overruling its demurrer to the complaint. The complaint is sufficient to charge the appellant company with negligence, and to show a right of recovery against it. It is alleged that, while the plaintiff’s intestate was a passenger upon a train of the Northern Pacific Company, he was killed in a collision of that train with a train of the Minneapolis & St. Louis Company, running in the opposite direction, and that the collision was caused by the negligent manner of the operation of both trains. It is particularly alleged that both trains were running at a dangerous and unlawful rate of *329speed, and that the switches were not properly arranged for the run • ning of these trains. The position of the appellant is untenable, that, in order to show its responsibility, it must appear that the 'train of the other defendant was rightfully upon this track. If the collision was caused directly by the concurrent negligence of both companies, both are responsible. The negligence of the common carrier upon whose train the deceased was a passenger was. not imputable to him. Follman v. City of Mankato, 35 Minn. 522, (29 N. W. Rep. 317.) It may be here stated that Thorogood v. Bryan, 8 C. B. 115, and Armstrong v. Lancashire & Yorkshire Ry. Co., L. R. 10 Exch. 47, referred to in Follman v. City of Mankato, as opposed to our decision in that case, have been recently expressly overruled in the English court of appeal. The Bernina, 12 Prob. Div. 58. The collision and injury having been caused directly by the concurrent wrongful acts or omissions of both defendants, all tending to produce the one resulting event complained of, the action against them jointly is maintainable, although there was no concert of action or common purpose between them. Colegrove v. New York & N. H. R. Co., 20 N. Y. 492, (75 Am. Dec. 418;) Cuddy v. Horn, 46 Mich. 596, (10 N. W. Rep. 32;) Tompkins v. Clay Street R. Co., 66 Cal. 163, (4 Pac. Rep. 1165.) See language of Lopes, J., in The Bernina, 12 Prob. Div. 58, 99. See, also, Stone v. Dickinson, 5 Allen, 29, 31; Chipman v. Palmer, 77 N. Y. 51, 57; Slater v. Mersereau, 64 N. Y. 138; Cooper v. Eastern Transportation Co., 75 N. Y. 116.

In the order overruling the demurrer the court allowed this appellant to answer within 10 days, upon the condition that the cause should proceed to trial at a term of court then being held. The imposing of this condition is now assigned as an abuse of discretion. The appellant does not appear to have reason to complain. Having admitted the allegations of the complaint by the demurrer, it had •no right, as a matter of course, to withdraw that admission, and join issue upon those allegations; nor does it appear that the defendant •ever sought to be allowed to do so, or claimed before the court that it had any defence to the facts alleged. The appellant cannot complain of the condition attending the granting of leave to answer, when it does not appear that it was entitled, as a matter of right, to leave *330to answer at all. But, apart from this consideration, in allowing a. party to withdraw a demurrer, and to plead to the facts alleged against him' a court may properly, in the exercise of its discretion, impose such reasonable conditions as may prevent unnecessary delay in the trial and determination of the cause; and it must be made to appear that a party has been prejudiced before the action of the court in such matters, not appearing to be unreasonable or prejudicial upon its face, will be held to have been an abuse of discretion. The order in question seems to us to have been reasonable, at least in the absence of any showing of circumstances preventing the defendant from complying with the condition.

Order affirmed.