Boston & M.R.R. v. T. Stuart & Son Co.

• Decision Date: 26 May 1920
• Citation: 236 Mass. 98,127 N.E. 532
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BOSTON & M. R. R. v. T. STUART & SON CO.

236 Mass. 98

127 N.E. 532

BOSTON & M. R. R.

v.T. STUART & SON CO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 26, 1920.

Report from Superior Court, Middlesex County; Franklin T. Hammond, Judge.

Action by the Boston & Maine Railroad against the T. Stuart & Son Company. On report on a case stated without decision to the Supreme Judicial Court. Demurrer to the declaration sustained, plaintiff given leave to amend, and, on allowance of amendment, judgment ordered for plaintiff.Trull, Wier & O'Donoghue, of Lowell, for plaintiff.

George M. Poland and Loring P. Jordan, both of Boston, for defendant.

JENNEY, J.

This action is before us on a case stated, reported by a judge of the Superior Court under St. 1917, c. 345, without any decision. The facts, so far as material, are as follows:

‘The plaintiff and the defendant on June 24, 1912, made an agreement in writing * * * concerning the work to be done and the material to be used’ in the elimination of a railroad crossing at grade in Somerville. The railroad was required to abolish this crossing by a decree of the Superior Court, entered under St. 1906, c. 463, pt. 1, § 29 et seq. The decree ordered a change in the grade of Village Street, a private way. Under the contract the defendant was required to ‘provide materials and perform all the work * * * under the direction, and to the satisfaction of the Chief Engineer of the [railroad].’ It was further stipulated that the contractor should be ‘solely responsible for all work and men employed,’ and should ‘indemnify and save harmless the Company against any and all claims or demands, on account of injury by any act or omission of the contractor, his agents or servants, to any property of, or under the control of the company, and to company's servants and passengers and their property, and to the persons and property of others, during the progress of the work under this contract, and that, in case any action, or actions, or other legal proceedings, shall be brought or instiuted against the company on account of any such claims, or on account of any unauthorized or illegal interference by the contractor, his agents or servants, with any highway or travel thereon, the contractor will assume the defense thereof, and will indemnify and save harmless the company against all costs, expenses, counsel fees and judgments resulting therefrom.’ The specifications which were made a part of the contract also placed on the defendant the obligation to ‘keep the streets open to traffic, so far as possible, during the execution of the work’; ‘to indemnify and hold harmless the * * * railroad from all claims of any description brought against it on account of anything connected with him [it], his [its] employés, appliances or operations'; and to take proper precautions to prevent accidents by placing and maintaining fences and lights where needed.’ They further provided in effect for the giving of lines by the chief engineer.

May 5, 1913, about 3 o'clock in the morning, during the time that the defendant was engaged in work required by the contract, Frederic W. Coles fell over one of a row of stakes that had been driven by direction of the engineer of the railroad at the request of the contractor, for the purpose of defining the line of Village Street. The stake projected three or four inches above the sidewalk. The railroad employed no watchmen, placed no barriers or lights in the vicinity of the place where the accident happened, and did no work in that neighborhood, other than ‘to give lines and grades to the contractor.’ The defendant at that time maintained barriers and lights in Village Street, and employed ‘a person whose duty it was to see that the lanterns remained lighted and the barriers remained unmoved during the night and * * * said person was working on Dane Street [with which Village Street connected] or thereabouts on the night’ of the accident.

Coles brought actions, which were tried together, against both parties to this proceeding. He recovered judgment against each for $9,000 and costs. See Coles v. Boston & Maine Railroad, 223 Mass. 408, 111 N. E. 893. The right of Coles to enter on the private way is not now involved.

At the trial of the cases in which Coles was plaintiff, he based his right of recovery against both defendants on the negligent placing of the stake, and upon negligence in leaving it unguarded and unlighted. Special questions submitted to the jury and the findings thereon were the same in each case, and were as follows:

‘What was the approximate cause or causes of the plaintiff's accident? Jury answered: He stumbled over protruding stake in beaten path.’

‘Was the defendant * * * negligent? If you answer yes, state what that negligence was. The jury answered: Unprotected condition of the protruding stake.’

Other questions and answers settled the questions of fact involved in the due care of Coles in his favor, and fixed the amount of damages. The exceptions presented by the defendants were overruled (Coles v. Boston & Maine Railroad, supra), and the judgments have been satisfied by the present parties, each of whom has paid a part thereof under an agreement between themselves that whatever payment was made by either, was made without prejudice to the right of indemnity against the other. It was expressly agreed that each of the defendants in those actions by Coles should have the same right of indemnity against the other defendant in said actions, for any money so paid to satisfy said judgments in whole or in part that there would have been in case the amount had been paid on execution.

Thereupon the plaintiff brought this action to recover the amount so paid by it in part satisfaction of said judgment, and for its expenses properly incurred. The amount for which judgment is to be entered in this case if the defendant is held, is fixed by agreement. It is admitted that the present defendant had due notice of the action by Coles against the present plaintiff, and was ‘given an opportunity to defend * * * the same.’

The defense is based on the claim that the ‘injury to Coles was caused in part by the negligence of the railroad itself, and that such an injury is not within the terms of the contract.’

By notice and opportunity to defend, the defendant was concluded in any subsequent litigation between the same parties as to all questions determined in the first action which are incident to the right of recovery in the second; and the plaintiff here, who was a defendant there, is likewise concluded as to the facts therein established. If it cannot be ascertained from the record upon what ground damages were recovered in the original suit, parol evidence is admissible to determine whether the issue in controversy in the second case was in fact decided. Issues not actually decided in the prior action are open. Boston v. Worthington, 10 Gray, 496, 71 Am. Dec. 678;Milford v. Holbrook, 9 Allen, 17, 85 Am. Dec. 735;Campbell v. Somerville, 114 Mass. 334;Churchill v. Holt, 127 Mass. 165, 34 Am. Rep. 355; s. c., 131 Mass. 67, 41 Am. Rep. 191;Boston & Maine Railroad v. Brackett, 71 N....