itself to produce the effect, and only hastened the result, the first cause was held to be too remote. In such cases both causes necessarily

contribute to the result.

2. The measure of proof required by the use of the words "any doubt" in charge No. 17 is too high, and, although followed by explanatory or qualifying words, the use of the word "proper" in the explanatory clause is misleading. A reasonable conviction is what the law requires. Reversed and remanded.

360. SEARLES v. MANHATTAN RAILWAY COMPANY COURT OF APPEALS OF NEW YORK. 1886

101 N. Y. 661, 5 N. E. 66

THIS action was brought to recover damages for injuries alleged to have been caused by defendant's negligence. Plaintiff was riding upon a car on the street under defendant's elevated road, in the city of New York, when a hot cinder fell from a locomotive passing overhead, and struck him in the eye. The following is the memorandum of opinion:

There was sufficient evidence to show that the plaintiff's eye was injured by a cinder lodged therein; that the cinder came from a locomotive upon defendant's railway, and that the plaintiff was free from contributory negligence. But there was an utter failure of evidence to show that the accident occurred from any fault, negligence, or unskilfulness on the part of the defendant. The defendant had the right to operate its railway over the street by steam, and to generate steam by coal, and any damage necessarily caused by the careful and skilful exercise of its lawful rights could impose no obligation upon it. To maintain his action, therefore, the plaintiff was bound to give evidence legitimately tending to show that the damage to his eye was caused in consequence of some negligence or unskilfulness chargeable to the defendant. The undisputed evidence shows that all the appliances used upon the defendant's locomotives to prevent the escape of sparks and cinders were skilfully made and were the best known. There was no evidence that any such appliances were defective or out of order. On the contrary, the proof tended to show that they were in order. The mere proof of the escape of cinders was not sufficient, as the evidence showed that their escape could not be avoided and was inevitable.

According to the proof, cinders from one of the defendant's locomotives could come only from (1) the smoke-stack or (2) the ash-pan. (1) There is no claim that the defendant is liable for this accident if the cinder came from the smoke-stack. (2) But the claim is that it came from the ash-pan because it was out of repair. But there was no evidence that the ash-pan was out of repair, or that the cinder came

from it. When the fact is that the damages claimed in an action were occasioned by one of two causes, for one of which the defendant is responsible and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause. And he must fail also if it is just as probable that they were caused by the one as by the other, as the plaintiff is bound to make out his case by the preponderance of evidence. The jury must not be left to mere conjecture, and a bare possibility that the damage was caused in consequence of the negligence and unskilfulness of the defendant is not sufficient.

The judgment should, therefore, be reversed, and a new trial ordered, costs to abide event.

Edward S. Rapallo, for appellant. Lewis J. Morrison, for respondent. EARL, J., reads for reversal and new trial. All concur, except DANFORTH, J., dissenting, and RAPALLO, J., taking no part.1

Judgment reversed.

361. COREY v. HAVENER. SAME v. ADAMS

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1902

182 Mass. 250, 65 N. E. 69

Two actions of tort by the same plaintiff against different defendants for injuries to the plaintiff and to his wagon caused by the alleged negligence of both defendants, each operating a separate gasoline motor tricycle at an illegal and dangerous rate of speed and frightening the plaintiff's horse. Writs dated December 22, 1900.

In the Superior Court the two cases were tried together before PIERCE, J. It appeared that the plaintiff, who was very deaf and could only hear by the use of an ear trumpet, was driving slowly in a wagon along Shrewsbury Street, a public street and main thoroughfare in Worcester; that the defendants came up from behind and

[1 Bernhard Windscheid, “Lehrbuch des Pandekten-Rechts" (9th ed., by Kipp, 1906, p. 61), § 263, note 15. Reparation for Damage. The damage must be such as would not have occurred if the act in question had not been done. In the following cases, therefore, there is no liability. (a) The damage would have been caused by the act charged if the act had had its full effect, but has in fact been caused by another intervening act; e. g. the defendant mortally wounds an animal, but the animal is then struck and killed by lightning. . . . (b) The damage is attributable to the act charged, as its cause, but also to another person's act as a cause; e. g. the defendant is in default as to repairing a certain thing, but afterwards the thing is destroyed without his fault. . . . Here, however, if both acts are tortious, both are liable. . . . (c) The damage was caused by the act charged, but this act has merely forestalled the operation of another cause, which would equally have done the damage, had the first act not obviated that consequence; e. g. a shipper wrongfully loads goods on a ship different from the one directed; the former ship goes down at sea, also the latter.]

passed the plaintiff at a high rate of speed one on each side; that each defendant was mounted on a motor tricycle with a gasoline engine making a loud noise and emitting steam; some of the plaintiff's witnesses saying that the machines emitted steam and smoke making a cloud about the defendants as they rode. The plaintiff testified that his horse took fright when the defendants first passed but was under control and guidance until he overtook the defendants, and that runing between them the horse shied and he then lost control. His wagon wheel struck another wagon going in the same direction, and the injuries to himself and his wagon occurred. The plaintiff and each of his witnesses was asked on cross-examination if he could tell which defendant or which vehicle caused the horse to take fright, and each witness was unable to tell.

The defendants requested the judge to instruct the jury, that the evidence showing that they were on two separate vehicles entirely independent of each other, and there being two different suits for the same injury, the burden was on the plaintiff to show which one of the defendants, if either, was to blame; and that, if it was not clearly shown which one of the defendants caused the accident, the plaintiff could not recover. . . . The defendants also requested the judge to instruct the jury, that there being two defendants and two separate suits, and the cause of action against each being for the same injury, if the jury found for the plaintiff they must assess the full damages and determine against which defendant, and that they could not assess full damages against both, as that would be giving double damages.

The judge refused to give either of these instructions. The jury found for the plaintiff in each case and in each case assessed the damages in the sum of $700. The defendants alleged exceptions.

G. A. Perkins, for the defendants. A. P. Rugg & H. H. Thayer, for the plaintiff.

LATHROP, J. The only question which arises in these cases is whether the judge erred in refusing to give the instructions requested. . . .

1. The verdict of the jury has established the fact that both of the defendants were wrongdoers. It makes no difference that there was no concert between them, or that it is impossible to determine what portion of the injury was caused by each. If each contributed to the injury, that is enough to bind both. Whether each contributed was a question for the jury. Boston & Albany Railroad v. Shanly, 107 Mass. 568, 578, and cases cited.

It makes no difference that the defendants were sued severally and not jointly. If two or more wrongdoers contribute to the injury, they may be sued jointly or severally. McAvoy v. Wright, 137 Mass. 207. The first request for instructions was therefore rightly refused.

2. Nor was there any error in refusing to give the second request. If both defendants contributed to the accident, the jury could not

single out one as the person to blame. There being two actions, the plaintiff was entitled to judgment against each for the full amount. There is no injustice in this, for a satisfaction of one judgment is all that the plaintiff is entitled to. Elliott v. Hayden, 104 Mass. 180. Savage v. Stevens, 128 Mass. 254. Luce v. Dexter, 135 Mass. 23, 26. McAvoy v. Wright, 137 Mass. 207. Galvin v. Parker, 154 Mass. 346. Worcester County v. Ashworth, 160 Mass. 186, 189.

Exceptions overruled.

Topic 2. Plural Causes of a Harm Plural or Separable (Joint

Tortfeasors) 1

362. ANON. (1492. Year-Book 6 H. VII, fol. 2, pl. 2.) Trespass d'assaut vers iiii, et de verberatione et vulneratione. Et l'un justifie naufrerant et les pleges per assaute del pleyntyfe mesme et le male que il avoyt fuyt de son assaut demesne et en son defence; et le pleyntyfe dyt de son torte demesne sauns tyel cause; et fueront a issue. Et lez auters pleade de ryen coupable. Et l'enquest dyent, et dyt fuyt par agarde del Courte que si le plee de cesty que justyfya soyt trove encounter luy, donques il serra charge de l'entyer damage, et ils n'enquereront ou ils luy naufrera ou nemye, pour ceo que c'est confesse par le justyfycacion. Mez de les auters il serra enquerant come bien ils fuerount, car ils poient faire assaut et ne luy naufrerer etc. Et donques, si il soit trove issint, les damages envers touts ceux en comen del assaut; et pour le naufrerer et reiner, envers cesty que justifia, etc.

1 T. Rutherforth, "Institutes of Natural Law" (2d Amer. ed. 1832, p. 204. Book I,.c. XVII). Reparation for Damage Done. A number of men may so concur in doing damage as to be all of them principals. In this case they are obliged, all and each of them, to make it good, if the act is such an one as arises from each of them alone, though they happened to be together when it was done, and all contributed towards the doing it; that is, if the damage which they have all done by a joint act, would have been the same, though only one of them had been concerned in it. But, if in the whole damage which is done by them all, only one part arose from one of them, and another part from another of them; then each of them is obliged for no more than his own share of the damage: because the rest of it did not arise from him.

We may explain this rule farther by distinguishing between indivisible and divisible acts. Those are called indivisible acts, in which many persons may concur; but the whole act would have been the same, though only one of them had been concerned in it. So that if all of them can be come at, they are obliged to join in making reparation: or if only one of them can be come at, he alone is to make the whole reparation. Where the act is a divisible one, that is, where part of the damage is done by one of the persons concerned, and part by another; so that the part which was done by the one can be distinguished from the part which was done by the other, and without the concurrence of them all, the loss would not have been the same; in this case all of them together are obliged to make good the whole damage; but each of them alone, considered as a principal, is not obliged to make good more of it, than what arose from him.

363. SIR JOHN HEYDON'S CASE

KING'S BENCH. 1613

11 Co. Rep. 5

SIR JOHN HEYDON, Knight, brought an action of Trespass of Battery, and wounding (which in Truth was in a cruel and barbarous Manner) at Fekenham in Norfolk, against Froxmere Cocket, Thomas Cocket, and Jeffrey Cobbe; Froxmere Cocket appeared, against whom the plaintiff declared with simul cum, &c. And Froxmere Cocket pleaded Not Guilty, and thereupon Venire facias issued &c. And afterwards Thomas Cocket appeared, against whom the plaintiff also declared with Simul cum, &c. who pleaded also Not Guilty, upon which, another Venire facias issues. And both these issues came to Trial at the Assizes at Thetford in Norfolk, Anno 8 Jac. Regis, before the Chief Justice of the Commons Pleas. And in Truth the Issue against Froxmere Cocket was first tried, and the Jury assessed Two hundred Pound Damages; and at the same assizes the Issue against Thomas Cocket was tried, and de bene esse Damages were assessed to Fifty Pounds. And the cause which moved the Jury to extenuate the Damages against the others, was, That altho' they were Parties, and of one Quarrel, yet Froxmere Cocket was the most malicious and cruel, and his Hand gave the said barbarous and grievous Wounds. Jeffrey Cobbe appeared, and confessed the Action, and a Writ of Enquiry of Damages awarded upon the Roll, but none issued. And a great Question was moved and defended for divers Terms, how, and against whom, and for what Damages, Judgment should be entered. And after the last, upon Consideration had of the Precedents, and of our Books, it was resolved per totam Curiam, as follows:

1. When, in trespass against divers Defendants, they plead Not Guilty, or several pleas, and the jury find for the Plaintiff in all, the Jurors can't assess several damages against the Defendants; because all is one Trespass, and made joint by the Plaintiff by his Writ and Declaration; and altho' one of them is more malicious, and de facto doth more and greater Wrong than the others, yet all coming to do an unlawful Act, and of one Party, the Act of one is the Act of all of the same party being present. And therefore in such Case, if the Hand of one only gives a mortal Wound, whereupon Death ensues, it is Murder in all who are present and of the same Party, altho' the others did not intend to give a Wound so mortal, as appears in Mackellie's Case, 9 Part of the Reports, fol. 67 b.

2. But in Trespass against two, if the Jury find one Guilty at one Time and the other at another Time, there several Damages may be taxed.