One question only is presented on this appeal. It relates to a release executed by the plaintiff to the Long Island Railroad Company which the appellant contends operated to discharge it from liability as a joint tortfeasor.
The plaintiff’s intestate was killed by collision with one of defendant’s cars while he was engaged in driving a wagon in the service of the Long Island Express Company, a corporation operated and controlled by the Long Island Railroad Company. Shortly before if not at the precise time of the accident a wheel came off the wagon causing it to tip, the plaintiff’s intestate was thrown over upon the seat and was caught between the wagon and the car and killed. The learned counsel for the appellant states the issue in his brief as follows: “ Two entirely different versions were given on the trial. Plaintiff’s witnesses contended that while the deceased was crossing the track and at a sufficient distance to avoid the accident, had the motorman used care, the wheel came off of his wagon and the car came on and caught him and killed him. The defendant contended that the car was stopped or almost stopped, and that while the plaintiff’s intestate’s wagon was passing the car the wheel came off and threw the wagon against the car, and that he was caught between the wagon and car and killed.”
The issue thus presented was submitted to the jury in a clear, accurate and impartial charge, and the result, in so far as it determines the appellant’s negligence and the plaintiff’s intestate’s freedom from negligence and assesses the damages, is unchallenged.
The rule, of course, is well settled that a party receiving injury from the wrongful acts of others is entitled to but one satisfaction, and that an accord and satisfaction, or a release or other discharge, by the voluntary act of the party injured, of one or two or more joint tortfeasors is a discharge of all. (Delong v. Curtis, 35 Hun,
*47694; Barrett v. Third Avenue R. R. Co., 45 N. Y. 628, 635 ; Knapp v. Roche, 94 id. 329, 334.) The verdict of the jury must be assumed, however, to include a finding that the accident in this case was not occasioned by the coming off of the wheel, excepting in the sense that but for that fact the accident would not have happened, as the plaintiff’s intestate would otherwise have driven off the track before the car reached the point of the collision. The theory upon which the verdict was rendered is that while the plaintiff’s intestate was helpless upon the track because the wheel liad come off, the defendant’s motorman negligently came down upon him and crushed him, although there was adequate notice and ample time to have avoided such a result by the exercise of ordinary care. Moreover, there is no proof in this case tending to establish that the coming off of the wheel was due to negligence on the part of the Long Island Railroad Company. The fact that the wheel came off is detailed, but there is nothing whatever as to how or why. There is no presumption that it was the result of negligence. (Cosulich v. S. O. Co., 122 N. Y. 118; Morris v. Railway Co., 148 id. 182.) No motion was made for a dismissal at the close either of the plaintiff’s case or of the entire case, the question under consideration being raised on the trial only by a request to charge that “if the accident was due partially to the wheel coming off, and the wheel coming off was due to the negligence of the Long Island Railroad Company, there must be a verdict for the defendant.” This the court declined to charge, but added that “ All I can charge under that head is that if the coming off of the wheel was what caused the accident, then there must be a verdict for the defendant.” The same instruction was contained in the main charge. There was no request for a charge based on the assumption that the accident was occasioned in part by the coming off of the wheel, irrespective of any question of negligence-in that regard, and the statement of the law made by the learned trial justice on the point presented must be regarded as being as favorable for the appellant as the facts of the case would warrant.
The judgment and order should be affirmed.
Present—Goodrich, P. J., Woodward, Hieschberg, Jenks and Hooker, JJ.
Judgment and order unanimously affirmed, with costs.