Hearn v. Boston & M. R. K

• Decision Date: 17 March 1893
• Parties: HEARN v. BOSTON & M. R. K.
• Court: New Hampshire Supreme Court

29 A. 970

67 N.H. 320

HEARN

v. BOSTON & M. R. K.

Supreme Court of New Hampshire. Strafford.

March 17, 1893.

Exceptions from Strafford county court Action by James J. Hearn against the Boston & Maine Railroad for damages for personal injuries. Verdict for plaintiff. Defendants except Exceptions overruled.

Case for personal injuries received by the plaintiff while traveling in a highway over a railroad crossing in Rochester, through the defendants' negligence in leaving a car upon the crossing. The defendants pleaded in a brief statement, and offered to prove that the plaintiff brought a prior action in this court against the town for the same injuries; that the railroad corporation, having received notice of the action from the town, appeared and conducted the defense, and that the town prevailed, and recovered judgment against the plaintiff. Trial by jury, and verdict for the plaintiff. The prior action was tried by a jury, who returned a verdict for the town, upon which judgment was rendered. The alleged defect in the highway was the car standing on the crossing. The defense in both actions was that the highway was not obstructed by the car, and that the plaintiff was guilty of contributory negligence. The defendants in this action offered to show by the testimony of jurors who tried the former action that the jury found the plaintiff guilty of contributory negligence. Other jurors would have testified that they found there was not sufficient notice to the town of the defect. The brief statement was rejected, and the testimony of jurors was excluded, subject to the defendants' exceptions.

D. R. Pierce, E. J. Smart, and E. G. Eastman, for plaintiff. Worcester, Gafney & Snow, and G. E. Cochrane, for defendants.

CHASE, J. The plaintiff seeks to recover of the defendants at common law (Elliot v. Concord, 27 N. H. 204), for the same injury for which he failed to recover of the town under the statute (Gen. Laws, c. 75, § 1), Had he obtained judgment against the town, the defendants, if they placed the car in the highway, would have been liable to reimburse the town for the damages and costs. Gen. Laws, c. 76, § 7; Elliott v. Concord, 27 N. H. 204; Littleton v. Richardson, 34 N. H. 179; Manchester v. Quimby, 60 N. H. 10. Notice of the pendency of the first action was given to the defendants by the town for the purpose of making the facts determined by the judgment therein conclusive evidence against the defendants in an action upon their liability to the town, if one became necessary. Lebanon v. Mead, 64 N. H. 8, 4 Atl. 392. The defendants had a right to appear in the action, and assume its defense. The judgment rendered in it concludes the plaintiff, the town, and the defendants equally in respect to all matters that were directly in issue that is to say, all matters "upon which the plaintiff proceeded by his action and which the defendant controverted by his pleadings." King v. Chase, 15 N. H. 9; Chamberlain v. Carlisle, 26 N. H. 540; Littleton v. Richardson, supra; Smith v. Smith, 50 N. H. 212, 217; Sanderson v. Peabody, 58 N. H. 116; Morgan v. Burr, Id. 470; Metcalf v. Gilmore, 63 N. H. 174; Lebanon v. Mead, supra. These matters were: First, whether the car rendered the highway defective; second, whether the town had express or constructive notice of its presence in the highway, and a reasonable opportunity to remove it before the accident, so that it was a defect in respect to the town (Hubbard v. Concord, 35 N. H. 52; Johnson v. Haverhill, Id. 74; Palmer v. Portsmouth, 43 N. H. 265; Chamberlin v. Enfield, 43 N. H. 356); and, third, whether the plaintiff could have avoided injury from the defect by the exercise of ordinary care (Farnum v. Concord, 2 N. H. 394; Norris v. Litchfield, 35 N. H. 271, 276; Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159, 161). The first and second matters were covered by the allegation in the declaration that the highway was defective, and the third by the allegation that the plaintiff's injury was caused by the defect (May v. Princeton, 11 Mete. [Mass.] 442; Corey v. Bath, 35 N. H. 531, 548); and all were controverted by the general issue. The first and third are in issue in this action, the second is not. It follows that the findings of the jury upon the first and third matters, and the judgment rendered thereon, bind these parties, and that the finding and judgment upon the second are immaterial in this action.

If the verdict in the first action had been in favor of the plaintiff, it would necessarily have shown, although general in form, that the highway was defective, and had been so a sufficient length of time to charge the town with notice of its condition and afford a reasonable opportunity to repair it, and that the plaintiff exercised ordinary care in its use. A judgment upon such a verdict would have estopped the railroad corporation from trying the first and third matters in issue again. The finding upon the second matter would be in addition to, and independent of, the findings upon the other two, and would not affect them. But, the verdict having been in favor of the town, and general in form, the record does not show what the finding was upon either of the issues. It may have been that the highway was not defective, or that it was defective, but the defect had not existed long enough to render the town liable; or that there was a defect for which the town was liable, but the plaintiff's injury was occasioned, in part at least, by his own negligence. Any one of these findings would justify the verdict. If the first and third matters only had been tried, a general verdict in favor of the town would have shown either that the car did not render the highway defective, or, if it did, that the plaintiff's negligence was an agency in causing his injury. A judgment on such a verdict would have estopped the plaintiff from recovering in this action. But the case shows that the second issue was tried. It is admitted that some of the jurors would testify (if their testimony were to be received) that the verdict was based upon that issue. As the record does not show upon which of the issues the former judgment was founded, it was incumbent upon the defendants, in order to establish an estoppel by that judgment, to prove by extrinsic evidence that it was founded upon the matters that are in issue in this action, namely, the first and third above mentioned, or one of them. Taylor v. Dustin, 43 N. H. 493. Evidence consistent with the record, and otherwise competent, would be received for this purpose. 1 Greenl. Ev. § 532; Smith v. Smith, 50 N. H. 212, 218; Morgan v. Burr, 58 N. H. 470. But testimony of jurors in respect to their consultations in the jury room and the grounds of their verdict is not competent. Smith v. Smith, 50 N. H. 212, 219; Wood v. Jackson, 8 Wend. 10, 37; Lawrence v. Hunt, 10 Wend. 81, 86;...