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22. In his action against the railroad, the plaintiff should recover
The plaintiff sued the railroad to recover compensation for his loss. The evidence in the case established that the failures of the two drains were caused by the respective negligence of the city and the railroad. There is no special rule insulating the city from liability.
A plaintiff suffered a severe loss when his manufacturing plant, located in a shallow ravine, was flooded during a sustained rainfall. The flooding occurred because the city had failed to maintain its storm drain, which was located on city land above the plaintiff's premises, and because a railroad had failed to maintain its storm drain, which was located on railroad land below the plaintiff's premises. The flooding would not have occurred if either one of the two storm drains had been maintained properly.
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A is incorrect. The plaintiff does not need to join the city in the suit and is not required to prove damages against the city. The railroad can argue the city's negligence in an effort to apportion or limit damages, implead the city as a third-party defendant, or pursue an action for contribution from the city after the railroad's judgment. The city's absence from the plaintiff's action will not affect the railroad's liability as a jointly liable concurrent tortfeasor, for the entire amount of the plaintiff's awarded damages.
B is incorrect. The plaintiff is not required to introduce evidence to enable the court to apportion responsibility between the city and the railroad; as explained above, the railroad is liable for the entire amount of damages as a jointly liable concurrent tortfeasor, and has several options to recoup damages from the city.
C is incorrect. As explained above, no evidence is required to award the plaintiff full damages, despite city's absence from the plaintiff's action because the railroad is a jointly liable concurrent tortfeasor.