A. V. Angell and Emily J. Angell, Appellees, v. The Chicago, Rock Island & Pacific Railway Company et al., Appellants, 98 Kan. 268

The opinion of the court was delivered by Mason, J.: In this case a judgment for damages resulting from a crossing accident was rendered against the railway company and two of its employees. On appeal this court concluded that an error had been committed which was prejudicial to the individual defendants but not to the corporation, and therefore affirmed the judgment against it, while reversing it as to them. The company asks for a rehearing or modification of the decision on the ground that the judgment was an entirety, and if reversed at all required to be set aside as to all against whom it was rendered.

Many cases, probably a considerable majority of those in which the question is passed on, sustain this view, but decisions to the contrary are not wanting. (4 Enc. L. & P. 664-666; 2 Standard Proc. 481; 2 R. C. L. 268, 269; 1 Black on Judgments, 2d ed., § 211, p. 315; 2 Dec. Dig., Appeal and Error, § 1173 (1).) We think the more reasonable as well as the more modern rule is that a judgment against joint tort-feasors may be affirmed as to a part of them and reversed as to others where no substantial injustice will result from that procedure, and that such a situation is here presented.

It is suggested that the execution of the judgment against the company should be stayed until the result of the action still pending against the employees is determined. The liability of the defendants was joint and several, and the plaintiffs might have proceeded separately against each of them. (Westbrook v. Mize, 35 Kan. 299, 10 Pac. 881.) The enforcement of their judgment against one is not dependent upon the result of their action against the others,.and there is no occasion for staying execution. The petition for a rehearing is denied.