contributed to the injury, if the prior negligence of the defendant was the efficient cause of the injury.” The Joseph B. Thomas (D. C.) 8 Ted. 578; See Chairman v. Lake Erie & W. R. Co 105 Fed. 449; See Concurrent Causes Negligence—Cent. Digest ¶ 74.
It must be shown that the servant assented expressly or impliedly to such transfer. Delaware Etc. R. Co. v. Hardy N. J. L. 35, 34, 34 Atl. 986; 37 L. R. A. p. 47 in notes; Morgan v. Smith (1893) 156 Mass. 570; Missouri K. & T. R. Co. v. Ferch (Tex.) 36 S. W. 487.
The employees cannot contract away the rights of the plaintiff. That contract may be good as between themselves but not as against plaintiff. Sager v. Northern Pac. Ry. Co. 166 Fed. 527.
Railway Company had the right to hire and discharge. 37 L. R. A. Note 40.
Railway Company owned engine. 37 L. R. A. Note pp. 44-45.
Railway Company had power of control and did control him. 37 L. R. A. 38 and 39. aie
“Various tests have been proposed for determining the relation of master and servant so as to render the master liable to indemnify the servant for personal injuries, but it is impossible to lay down any definite and satisfactory rule to all cases, and the question must be determined as it arises upon the facts and circumstances of the case. It is a question for the jury under proper instructions of the court.” 26 Cyc. 1083-1084 and note.
“It is not necessary that there should be a breach of a joint duty in any concerted action on the part of the defendants, but it is sufficient if their several acts of negligence concur and unite in producing the injury complained of.” 33 Cyc. 726; Chicago etc. Railway Company v. Marshall, 38 Ind. App. 217, 75 N. E. 973; Mathews v. Delaware etc. Railway Company, 56 N. J. L. 34, 27 Atl. 919, 22 L. R. A. 261.
“The general rule is that where the negligence of two or more persons concurs in producing a single, indivisible injury, such persons are jointly and severally liable, and this though there was no common design or concert of action.”
And there is this joint liability although one of defendants owed to the plaintiff a higher degree of care than the other. Edwards v. Great Northern Railway Compnay 171 N. W. 873, 42 N. D. 154; 33 Cyc. 726; Chicago etc. Railway Company v. Durant, 65 Kan. 380, 69
