Klauder v. McGrath

The opinion of the court was delivered by

Strong, J.

The plaintiff below declared against the defendants for an injury which she had received, in consequence of the fall of a party-wall negligently sustained by them. The basis of the action was the negligence of the defendants. It is contended now, that they could not be held jointly liable. The maintenance of an insecure party-wall was a tort in which they were both participants. The act was single, and it was the occasion of the injury to the plaintiff. It is difficult, therefore, to see why both were not liable, and liable jointly. The case is not to be confounded with actions of trespass brought for separate acts done by two or more-defendants. Then, if there has been no concert, no common intent, there is no joint liability. Here, the keeping of the wall safe was a common duty, and a failure to do so was a common neglect. The rule often recognised is, that when an injury has resulted from the concurrent negligence of several persons, they are jointly responsible. Thus, if a passenger be injured by a negligent collision of the trains of two railroad companies, he may maintain one action against both: Colegrove v. New York and Harlem and New York and New Hampshire Railroad Companies, 6 Duer 382.^* So, an action may be maintained jointly against, towns for an injury resulting from the insufficiency of a bridge which both towns are .under obligation to maintain: Peckham v. Burlington, Brayt. 134.

The judgment is affirmed.

* Affirmed by the Court of Appeals, in 6 Smith 492.