84 FEDERAL REPORTER.
to show that the child received a blow on the head; that there is a slight displacement of the parietal bone on one side of the head; that for some weeks ·llfter the accident the child's neck was twisted to one side; that, while the child can now readily turn his head in any direction, there still remains a slight atrophy of the muscles on one side of the neck, creating a tendency to carry the head slightly drooped; that since the accident the child has been subject to spasms, which did not exist before the accident; and that, if these result from the injury to the head, they may deyelop into a serious form. The testimony on behalf of the defendant tended to deny the existence of these injuries, and to minimize the effects thereof. This conflict in the evidence it was the province of the jury to consider, and to determine what the evidence established with regard to these particulars. If the evidence adduced by the plaintiff is accepted as a fair statement of the injuries actually caused the plaintiff, then it cannot be said that the verdict is so excessive in amount as to justify the court in interfering with the findinO" of the jury on this question, and it was clearly within the orovince of the jury to determine whether the evidence on behalf of the olaintiff on this question exceeded in weight that al1duced by the defendant. The motion for new trial is therefore overruled, and judgment will be entered in favor of the plaintiff in accordance with the verdict of the jury.
COLUMB v. WEBSTER MFG. CO.
(Circuit Court of Appeals, First Circuit.
January S, 1898.
JUDGMENT-RES JUDICATA-IDENTITY OF CAUSE OF ACTION.
A on the merits In a state court, in an action to recover for a personal injury on the ground of negligence, is a bar to a second action in a federal court by the same plaintiff against the same defendant to recover for the same Injury, and grounded on defendant's negligence In respect to the same occurrence, though additional acts of negligence are charged.
In E-rror to the Circuit Court of the United States for the District of Massachusetts. This was an action for personal injury, brought by Frank Columb against the Webster Manufacturing Company. The circuit court sustained a plea of former adjudication. and the plaintiff brings error. John L. Hunt, for plainti:ti in error. Richard M. Saltonstall (H. Eugene Bolles, on the brief), for defendant in error. Before COLT, Circuit Judge, and WEBB and ALDRICH, District Judges. ALDRICH, District Judge. This is an action to recover for damages which the plaintiff claims he sustained by reason of the defendant's negligence in New Hampshire. The plaintiff brought a prior
WEBSTER MFG. CO.
suit in the New Hampshire state courts against this defendant, and for the same injury, where he bad his trial upon the merits, and upon a caUBe of action involving the defendant'B aIIeged negligence as a ground of recovery, and where there waB a verdict of the jury and judgment for the defendant, and the defendant in the circuit court in· terposed such judgment as a bar to the further prosecution of the plaintiff's action therein. We think the New Hampshire judgment is a bar to the plaintiff's second action, and it seems quite unnecessary to add anything to the reasoning of the court below. It may be observed, however, that the cause of action (that of the defendant's negligence in respect to the same affair) was identical in both proceedings, although the plaint}ff, in this, his second proceeding, varies somewhat his description of the defendant's negligence. It remains, nevertheless, that this action was brought for the same injury, and that the action is grounded on the defendant's fault or negligence in respect to the same occurrence. In the New Hampshire case the plaintiff alleged the defendant's want of care in respect to its duty to furnish a suitable and safe place for the performance of the service which he was expected to render, and that, by reason of the careless and negligent construction of the bridge or trestle, and "by the sudden giving away of said trestle or railroad," he was "thrown into the river below," and injured; while in the proceeding here he alleges that "an unsupported section or part of said bridge, on which plaintiff was so assisting as aforesaid, fell, and, owing to the neglect of the defendant to provide safe and suitable safeguards, instrumentalities, and protection for and in the perform· ance of said work, and owing to the neglect of defendant to provide safe, suitable, and competent servants and agents to assist the plaintiff in the performance of said work, the plaintiff was precipitated into the said river," and was injured. The cause of action in the two proceedings is obviously the same. In the proceeding here the plaintiff alleges other elements of negligence, which he in effect says cooperated with the elements of negligence alleged in the first proceeding to bring about the same result; in other words, he alleges here additional acts of negligence, operating up(m the same occurrence, and tending to the same result. It is not necessary to prolong the discussion of this question further than to say that the scope or extent of the estoppel, operating upon the second action, like that involved in Roberts v. Railroad 00., 158 U. S. 1, 27-29, 15 Sup. Ct. 756, depends upon the question whether the demand or claim or cause of action is the same in the two proceedings. All authorities seem to agree that, if the cause of action is the same, a trial and judgment upon the merits operate as a bar to subsequent litigation between the same parties; while another line of authorities hold that. where the suit is between the same parties, and the claim or demand or cause of action is different (Forsyth v. City of Hammond, 166 U. S. 506, 518, 17 Sup. Ct. 665), the judgment in the former action operates as an estoppel only as to the particular points controverted, or to those matters which were strictly in issue. As to the first class of cases, as said by Mr. Justice Shiras in the
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Railroad dted 158 U.S., and 765, 15 Sup. Ct.), U1 quoting approvingly of tp.e supreme court,"a judgment estops, not only as to. every ground of recovery or defense' actually in the action, but also as to every ground which might have been presented." Southern Pac. R. Co. v. U. S., 168 U. S. 1, 50, 18 Sup. Ct. 18. The supreme court decisions are quite decisive, and controlling upon. question before us. IJa the case of Beloit v. Morgan, 7 Wall. 619, it is said, with reference to a former trial befO'l' a court having over the parties and the subject, that "under such circumstances a jUdgment is conclusive, not only as to the res of that case, but as to all further litigation between same parties touching the same subject-matter, though the res itself may be different." Again, in referring to the point taken by counsel that the estoppel only operates upon the precise question in issue, it is said:
"But tbeprinciple reaches further. It extends, not only to the questions of fact and of which were decided in a former suit, but also to the grounds of recovex:y or defense which might have been, but were not, presented."
Again, in the same case it is said:
"A party can no more spIlt up defenses than indivisible demands, and present them by piecemeal in successive suits growing out of the same transaction."
This principle was reaffirmed, and the doctrine emphasized, by the supreme court in Stark v. Starr, 94 U. S. 477, 485, where it is said by Mr. Justice Field:
"It is nndoubtedly a settled principle that a party seeking to enforce a claim. legal or equitable, must present to the court, either by the pleadings or proofs. or both, aU the grounds upon which he expects a judgment in his favor. He is not a,tliberty to split up his demand, and prosecute it by piecemeal, or' present ol)Jy a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail. There would be rio end to litigation if such a practice were permissible." .
We have said, in this Gircuit, of supposed grounds of recovery not presented in the original' cause, that, if we were to assume they were sufficient to put in issue the propositions argued, they would not be effectual to give the complainants the relief desired; and this was for the reason, as there observed, that in the principlll cause the court had jurisdiction of the parties and the subject-matter of the controversy, and. judgment therein must, therefore, be taken as conclusive. Jonesv. 33 U. S. A:t>p. 703, 713, 22 O. C. A. 483, and.76 Fed. 683. The additional allegations of negligent acts, in the case at bar, are (as said of the new in Southern Pac. R. Co. v. U. S., 168 U. S. 1, 65, 18 Sup. Ct. 18) cumUlative," and they merely present elements of negligen,ce which were, in contemplation of law, at least for the fair and reasonable purposes of the res judicata rule. invoOlved inthe affair complained of, and in the single and indivisible cause of action originally set out,-that of the negligence which occasioned the injury.to the plainand fault of tiff. v. Construction 00., 160 Mass. 201, 203, 35 N. E. 555; Patterson v. Wold, 33 Fed. 791, 793. The reasons for the res judicata rule have been stated again and again, and they include, among other cdnsiderations, the idea that the interests of the public
COLUMB V. WEBSTER MFG.
and of litigants alike require that a legal conn-oversy should end with one investigation before a tribunal with ample jurisdiction to do justice, and with· ample opportunity for the parties to present their case with such measure of statement and proofs as they see fit. A rule which would allow the plaintiff to split his case, and measure out a part of his grievance and of his proofs, and, in the event of failure, to try again upon a greater measure, would necessarily allow the defendant to stand on a part rather than all of his defense to a given cause of action, and, if this should prove insufficient, a second trial upon ·a more full statement and a greater measure of proofs would be open to him. Under such a rule, litigation would at once become conburdensome and oppressive, interminable and dition which the modern law seeks to avoid, and a situation which the courts of the prsent age are not disposed to aid in creating. Is there any safe or reasonable ground upon which a cause of action based upon the supposed negligence of an employer can be treated as divisible? Is there any reason for a rule which would permit a plaintiff, by varying his description of negligence, to have a second trial, if he fails to succeed upon his first description and proofs, but deny him a second trial if he does succeed? No reason has been urged in support of such a rule of law, and it is difficult to see that any could be suggested. Then let us look at the question with reversed light. Suppose the plaintiff had recovered in his New Hampshirp case, upon such description of the negligence as he employed there; could he, by varying his description, and alleging additional negligence contributing to the same accident, have another recovery of damages for the same injury? If the affirmative is asserted, how are the damages to be divided? How much for the negligence as first described, and how much for the negligence set out in the second description? It is not believed that anyone would seriously insist upon the right of a second recovery. If it is conceded, then, that under such circumstances a second recovery could not be had, for the reason that the full right of recovery was involved in the description of the defendant's negligence which the plaintiff employed, and in the trial, and therefore merged in the judgment favorable to the plaintiff, upon what logic can it be urged that the full right of recovery is not merged in a judgment unfavorable to the plaintiff, which is based upon the same allegations, the same trial, and the same proofs? A rule which would make the question whether a judgment is conclusive upon the plaintiff depend upon the question whether the judgment is for or against him, and make the result of the trial a conclusive estoppel upon both parties if favorable to the plaintiff, and otherwise not, would bea one-sided rule, discriminating in favor of the plaintiff, and a rule which would at once destroy the fundamental idea of estoppel by judgment. It is true that the plaintiff, in his second attempt to describe the cause of action, states a stronger case than in his first, for the reason that he includes other elements of negligence; but this does not entitle him to a second trial. A person suffering from a supposed grievance of the character in question must not be permitted to re-
sort toseverl1l trIals and to differeDt courts, experimenting as to relief, first with a part of his cause of action, then with a little more, and then again with a still stronger description of the co-operating elements which are supposed to have caused the injury. If sound principles permit a second trial, because· the second pleader presents a stronger description of the negligent acts contributing to the injury than the first, why not a third, and fourth, and so on without limit, as long as a pleader can be found with sufficient skill and ingenuity to draw a declaration broader than the Qne next preceding? It follOWS, from this reasoning, that,the plaintiff having elected the New Hampshire court as the tribunal to settle his rights, and his cause of action being grounded upon the supposed negligence of the defendant,he should have put in evidence all the supposed negligent acts which contributed to the injury, and if, upon the trial, it had turned out that the scope of the evidence was broader than that of the declaration, it is understood that the New Hampshire amendment practice would have permitted the declaration to be recast, to the end that the whole case might go to the jury. If he did not do this, it was his own fault or misfortune, but is not such a misfortune as entitles him to a second trial. No question is made on argument that the plaintiff, Frank Columb, is not the same person as "Frank Colon," the plaintiff in the New Hampshire case, and it is conceded that the variance between the names is the result of clerical error. This being so, it abundantly appears from the record that the parties and the subject-matter of the cause of action here are the same as in the case presented in the New Hampshire state court, andupon which the plaintiff had a trial upon the merits. The plea in bar interposed in the circuit court, therefore, did not require the aid of matter dehors the record. The circnit court expressly excluded the aliunde evidence, and determined the questiQn-and rightly, we think-upon the record itself. This being so, it is not necessary that we consider the other questions raised by the assignment of errors. Judgment of the circuit court affirmed. with costs in this conrt to the defendant in error. "
ADAMS v. SOUTHERN RY. CO.
(CIrcuIt Court of Appeals, FIfth Circuit.
January 3, "1898.)
RAILROADS-INJURY TO PERSONS ON TRACK-TRESPASSERS.
A declaration, in an action to recover for the death of children killed on defendant's railroad track by one of its cars, which alleges a custom by the public for 10 years to use the track at the place where the injury occurred as a footway, as was being done by the children, and that such custom was known to, and acquiesced in by, the officers of the defendant company, Is sufficient to require the question as to whether the children were trespassers to be tried and determined as one of fact.
Where a car escapes from control through' the negligence of the servants of a railroad company, and, after running three-fourths of a mile, injnres