I dissent from the affirmance of this judgment. It is conceded in the prevailing opinion that when the plaintiff rested she had established a case against the defendant Meyer which called for its submission to the jury upon the question of negligence and damages, but as to the vehicle company there was no evidence to justify the submission of the case against it to the jury. It is also clear from the whole evidence that-there was no justification for a finding of concurrent negligence of these defendants which caused the injury. If the evidence offered on behalf of the plaintiff and the vehicle company was believed, the jury would have been justified in finding a verdict against the defendant Meyer; and assuming that the evidence of the defendant Meyer would have justified the jury in finding a verdict against the vehicle company, if the defendant Meyer was guilty of negligence the vehicle company was not liable, and, conversely, if the evidence justified a finding against the vehicle company, the defendant Meyer was not liable; and this is also conceded in the prevailing opinion. It is held, however, that this question is not available to either of the defendants upon this appeal, as neither defendant excepted to the charge that the jury *343could find both defendants guilty and charge both. After the verdict was rendered each defendant separately made a motion to set aside the verdict and for a new trial upon the ground that the verdict was excessive, contrary to the evidence, contrary to law, and upon the exceptions taken during the trial. These motions were both denied by separate orders and from these orders both defendants appeal. I think the appeal from these orders raised the question as to whether the evidence was sufficient to sustain a joint verdict against both defendants. The verdict was a joint one and cannot be sustained as such against both defendants unless there is evidence to sustain a finding of a concurrent act resulting in the injury, and that in the absence of such evidence it was the duty of the court to set aside the verdict as against the weight of evidence, or as without evidence to sustain it. ' The fact that the defendant Meyer to exonerate himself introduced evidence which contradicted that of the plaintiff and the vehicle company, and which, if believed, would justify an independent verdict against the vehicle company, would certainly not justify a joint verdict against both defendants, as that could only be sustained by evidence which would justify the jury in finding that the injury was caused by an act of negligence of which both defendants were guilty. It is conceded that there is no such evidence in this case. We have here a joint verdict against both defendants which it is conceded is wrong as against one of them. I think, therefore, that the orders refusing to set aside the verdict and grant a new trial should be reversed and a new trial granted.
I also think that the verdict against the vehicle company is against the weight of evidence, and that taking the evidence as a whole the jury were not justified in finding a verdict against that company, and for this reason the judgment as against the vehicle company should be reversed.
Judgment and order affirmed, with costs.