FEDERAL REPORTER,

vol. 50.

void, we cannot preclude her present motion by saying that it was merged in the new judgment. ,There was which could become merged. This is not a case of error in a judgment. There was no error, as the facts disclosed nothing; , It is like a judgment against one dead when suit began,-a nullity. "A judgment which is a nullity on account of being rendered that does not exist will be vacated, and;asa general rule, all void judgments will be so treated." Freem. Judgm. § 98. It may be that the intervention of the sllc()ild judgment is a grave difficulty. But the wrong of enforcing a. contract like this, and 6.f compelling the widow to suffer for an act void ab initJUl, and incapable of confirmation by mere acknowledgment, (see 14 Amer. & Eng. Enc. Law, 619,) is too monstrous to be entertained. Let the judgment and all proceedings under it be vacated.

COMITEZ

v.

PARKERSON

et al.

(OircuU Court, E. D. Louisiana. April 28, 1892.)
L DB.l'l'Jl

In ,an by a widow to recover damages tor the killing of her husband by a mOb',When,tbe peti,tion, t,u, ll,Y sets out her cause 01 action, it is improper to annex of ,the ,alfair as pubHsbed in a newspaper On the day folloWing thekUUng. proper to join. as a party defendant with the .individuals who participated in the killing, the clty in whioh the act was coDiinitted, on the ground of it.a negligence in not preventing the killing.: .

.r: :WRONGPUL

ACCOUNT!l.

2. SUi'B-P.utTIES. As all the p,arties inany,way concerned in the tort are liable in ,oldd.o, it is

At Law. Action by Annie Comitez against W. S. Parkerson, the city of New Orleans; and others, to recover damages for the killing of her husband. Heard on exceptions to the petition. Sustained in part and overruled in: part. John Q. Flynn, for plaintiff. Henl"!1 C. Miller aud Oha8., F. Buck, for defendants.
BILLINGS, District Judge. This is a suit brought by the widow of Loreto Comitez for damages for the' killing of her husband. The cause is submitted on two exceptions to the. petition filed by all the defendants except the city of New Orleans. It is objected that an article from the has been made a part of the petition. The article is not properly an exhihit, to be considered in connection with the petition in the statemen:t of the plaintiff's complaint. The averments of the plaintiff are made without this article, und then follows the averment as follows: '

"To mOre OParticularly set forth 'the facts of this case as bereln charged. and detailing more particularly the events which transpired on the morning of said memorable March 14, 189:1, pet,itidner copies of the

COMITEZ f'. PAnKEl'tSON.

171

Times-Democrat of March 15. 1891. which contains a full and complete ac.count of the transactiona of the d!lY previous, the 14th March. 1891. and makes same part of this petition."

I think the journalistic account is superfluous. when considered in connection with the averments of the petition, which contains, without this article, the complete statement of the plaintiff's case. It could not be read to the jury without producing an effect distinct from and in addition to the mere statement of the case which the plaintiff intends to offer proofs in support of. It would produce an effect which should come from proofs adduced in the manner which the law directs, viz., from witnesses giving their testimony under oath, and liable to cross-examination. It is therefore not only superfluous, but unauthorized, and the exception to it is maintained. The other exception urges the improper joinder of the exceptors with the city of New Orleans al'l joint defendants in the same action. The individuals are sued for the killing, and the city for not preventing the killing. At the common in a trespass all are principals, and all and each of the trespa8sersare liable for all the injury done. 5 U. S. Dig. p. 537, tit. "Trespass," 159. Among those who must make reparation. for a trespass are "all who contributed to the action either by doing what he ought not, or by omitting what he ought to have done," (3 Puff. Law Nat. par. 4, p. 216;) and when several persons have been jointly concerned in the commission of the wrongful act, they may all be made defendants, and. charged as principals, or the plaintiff may sue one or more of them, at his election, (Add. Torts, p. 67; 1 Chit. PI. 86.) Our own Code provides (Rev. Civil Code, art. 2315) that every act whatever of man which causes damages obliges him by whose fault it happened to repair it. Article 2316: That every person is responsible for the damage he occasions, not merely by his act, but by his negligence, etc.; and in the concluding article on offenses and quasi offenses, (article 2324,) there is the provision as to solidary liability of wrongdop.rs as follows: "He who caUSf>S another to do an unlawful act, or assists or encourages in the commission of it, is responsible in aolido with that person for the damages caused by such act." While it is possible that the strict meaning of the words "causes." tlassists," or tlencourages" might not, if employed under other circumstances, include failure or omission to prevent, it is also clear that it was the intention of the legislature in article 2324 to make all who were liable for an unlawful act liable in 8olido. In Vredenburg v. Behan, 33 La. Ann. 627, where the suit was the members of a club whose agent had been guilty of negligence, the court affirmed a judgmp.nt given in 8olido. The city of New Orleans is sued along with the individual defendants for damages for an unlawful killing. It is averred in the plaintitrs petition that the individuals committed the unlawful act, and that the city contributed to it by an antecedent delimit, in that it did not prevent it. The damages are for an act in which flU the defendants in law, according to the pleadings, joined. They are therefore, according to the general rules of pleading, as well as by the provisions of the Civil Code,

112
'., I

FE,l),ERAL

vol. 50.

as defendants in this action. Thee:itception to the news:paperarticle is therefore maintained. The exception of misjoinder is overruled, and the defendants have 10 days in which to answer the . plaintiff's petition.

as

LAPSLEY

v.

UNION PAC.

R.

CO.

(Oircuit Court, N. D. Iowa. Ootober 10, 189L)
1.

Unllsr statutes of Iowa, in cities the employes of a railwayoompany, opsrat· 'ingits trains' are relJ.uired to commence to ring" the bells 60 rods before reaching the crossing, and to continue to ring it until the crossing is reached, and the omis· with this st,at)lte is negligence. no statute regulating the rate of speed at the common-law which is that the duty and obligation rests at all times upon the railroad company to use ordinary care and prudence in the management of its trains in approaching crossings, so that no unnecessary risk or hazard shall be cast upon the public, who have the righ t to pass over said crossing, taking into consideration their location and surroundings.

A(lOIJ)lIINTS AT RAILWAY CII088INGs-RINGING BELl"

2.S:urn:....:RATE OF SPEED AT CROSSD1G.

Thol'e

3:

SAME-FLAGMAN ANn GATlIIS AT CROSSINGS.

.Tl1e question of .whetherthe railroad company should have flagmen or gates at orossillgs, ill the absence of statutes, depends likewise on the circumstances, such as bheamount of travel over the orossing, the obstructions, etc., and is a matter of faotto be determined by the jury·

.. SAME-IMPUTED NEGLIGEN01ll·.

,"

Where a woman is riding on the baok seat of a two·seated spring wagon, which is driven by her brother, who owns the team and wagon, and over which she has no control, and she is injured in a oollision at a crossing by a railway train, if the .negligence of the brother in driving upon the crossing contributes to said injury, hoeld, that said contributory negligence cannot, as a matter of law, be imputed to her.

At La,w. Action by James J. Lapsley,administrator of the estate of Eliza J. Lapsley, against the Union Pacific Railroad Company, to recover damages for causing the death of his intestate. Verdict and judgment for plaintiff in the sum of $1,000. · A. S. S. H. Marsh, for plaintiff. Wright H'/!-bbard and W1'i,qht Baldwin, for defendant·

«

is

District Judge, (charging jury.) In this case the plaintiff, administrator of the estate of Eliza J. Lapsley, eeeks· to recover agaiJ?st tbedefendant company for the amount of damages it is claimed was caul?edto the estate of Eliza J. Lapslp,y by reason of the fact that iIi November a year ago Miss Lapsley was killed by an accident happe.ning 'j:ipon the track of the defendant company. In order to entitle the plaintiff to recover under circumstances of this kind, it is not suffioient simply to show that an accident has happened, and that in]1;1ry or.de;ttb has resulted the acddent beinl?; caused by a GPllisioJ? ,,,ith the train of the defendant upon the road of the defendant The burden is upon the plaintiff of going further, and showing, .tn the first instance, by a .fair preponderance of the credible testitpopfiri the case, that the accident was. caused .by negligence upon the .Of ,the railway company. . 'other; words, this action is one that is In ",_, '.·· ' · J.I <" .
.· SHIRAS,