The principal ground upon which the defence rests is, that the defendants are not jointly liable for the consequences of the collision, though it resulted from the negligence of each company, because the negligence was not joint. Had the collision set in motion a third body, which in its movement had come in contact with and produced the same injury to the plaintiff, no good reason can be assigned against their joint liability; such a case is in principle like the one under consideration.
The defendants have not been in any respect prejudiced by the refusal of the court to permit them to demur to the evidence. The party demurring is bound to admit as true not *Page 494 only the facts proved by the evidence but also the facts which the evidence may legally conduce to prove (2 Dunlap's Pr., 648), and this is precisely what must be admitted on a motion for a nonsuit or for a peremptory direction that a verdict be rendered. The party nonsuited or against whom a verdict is ordered is upon appeal entitled to have every doubtful fact found in his favor. No benefit other than delay could result to the defendants by the interposition of a demurrer which would not be the result of the motion made by them to dismiss the complaint after the evidence on both sides had closed. The demurrer to evidence has long since gone out of use in this State, and ought not any longer to be regarded as a right upon which an exception can be predicated. Thus far we see no ground for disturbing the judgment of the court below. We do not agree to the soundness of the proposition put forth in the charge "That no fault of the plaintiff could excuse the defendants from liability, unless it had the effect to produce the collision that caused the injury;" and if the question was necessarily involved in the case, we are all of opinion that the judgment should be reversed, but inasmuch as the answers by the jury to the interrogatories propounded by the judge did not involve the plaintiff in any negligence, we think the judgment should be affirmed.
DENIO, J., dissented upon the ground that a joint action was not maintainable. GROVER and STRONG, Js., also dissented upon the ground that it should have been submitted to the jury to inquire whether the plaintiff was not (by reason of circumstances not set forth in the preceding statement of the facts), guilty in standing upon the platform, of culpable negligence, which contributed to his injuries and excused the defendants.
Judgment affirmed. *Page 495