Illinois Cent. R. Co. v. Slater

• Decision Date: 31 October 1891
• Citation: 139 Ill. 190,28 N.E. 830
• Parties: ILLINOIS CENT. R. CO. v. SLATER.
• Court: Illinois Supreme Court

139 Ill. 190

28 N.E. 830

ILLINOIS CENT. R. CO.

v.SLATER.

Supreme Court of Illinois.

Oct. 31, 1891.

Appeal from appellate court, second district.

Action by Belford Slater, administrator of Lewis W. Slater, deceased, against the Illinois Central Railroad Company for the negligent killing of deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

W. & W. D. Barge, for appellant.

J. W. Allaben and Dixon & Bethea, for appellee.

CRAIG, J.

This was an action brought by Belford Slater, administrator of the estate of Lewis W. Slator, deceased, against the Illinois Central Railroad Company, to recover damages resulting from the death of the deceased, caused, as alleged, by the negligence of the railroad company. Belford Slater, the father of Lewis W. and Arthur B. Slater, on the 24th day of August, 1886, sent the two boys from his farm to Polo, with a wagon and span of horses, for the purpose of getting certain goods. Lewis was 13 and Arthur 10 years old. On their return home, while attempting to cross the railroad track, a passenger train on defendant's railroad collided with the wagon, and both boys were killed. Belford Slater was appointed administrator of the estate of each of his sons, and brought separate actions to recover for the death of each. The action for the death of Arthur B. was tried at the August term, 1887, of the circuit court of Ogle county, and resulted in a judgment in favor of the plaintiff for $1,000. On appeal, the judgment was affirmed in the appellate court, and on further appeal affirmed in this court. At the March term of the same court, the other case, brought to recover for the death of Lewis W. Slater, was tried, and resulted in a judgment in favor of plaintiff for $1,350, which was also affirmed in the appellate court, and the railroad company has prosecuted this appeal. The first count of the declaration alleged that on August 24, 1886, defendant possessed and operated a railroad through the county of Ogle, over a public highway running east and west on section line between sections 4 and 9, township 23, range 8; that Lewis W. Slater was then, with all due care, riding upon said highway in a wagon drawn by two horses, and with all due care and caution came upon said railroad at said crossing, and while so riding, with all due care, across said railroad, at said crossing upon said high way, in said wagon there, defendant then and there, by its servants, so carelessly and improperly drove and managed its locomotive engine and train, by running the same at a high and dangerous rate of speed, and by failing to keep a proper watch for persons about to pass over said crossing, or to give such signals as would apprise such persons, using due care, of the approach of said locomotive engine and train, and by failing and neglecting to stop or endeavor to stop said engine and train so as to prevent injury to said Lewis W. Slater upon said crossing, that, by and through said negligence and improper conduct of defendant in that behalf, said engine and train then and there struck said wagon, and said Lewis W. Slater was then and there thrown out of said wagon with force and violence, and against said engine, and was thereby then and there killed; that said Lewis W. Slater left surviving Belford Slater, his father; Ruth A. Slater, his mother; Albert G. Slater, Willis A. Slater, and Roy J. Slater, his brothers; and Sarah M. Slater, his sister and next of kin,-who have been deprived of their means of support and sustained demages. The declaration contained other counts, but it will not be necessary to refer to them here. The declaration in the other case was in all respects similar to this declaration, except the name of Arthur B. Slater occurred where Lewis W. Slater appears in this declaration.

It will be observed that the same railroad is defendant in each case; the same tortious act led to the death of the two persons; the same father and mother, brothers and sister, in each case; the same next of kin and beneficiaries in each case. It will also be noticed that, as the killing of the two boys resulted from one and the same transaction, in the trial of the first case, the evidence in reference to the death of Lewis W. Slater, the deceased in this case, was all gone over and introduced before the jury. Indeed, it was impossible for the plaintiff to prove the death in the one case without at the same time, and by the same evidence, proving the death in the other case; or to establish a cause of action in the one case without at the same time, by the same evidence, proving the facts which led to a recovery in the other. Under these particular facts, it is insisted by counsel for th railroad company, with must earnestness, that the judgment in the first cause is a bar to this action. The law is well settled, not only by text-writers, but by the decisions of numerous courts of last resort, that a judgment in a civil proceeding, based upon a certain cause of action, is binding and conclusive on the parties to the proceeding, and another suit or proceeding cannot be maintained upon the same cause of action. Trask v. Railroad Co., 2 Allen, 331. ‘The law does not tolerate a second judgment for the same thing, between the same parties, whether the claim is upon a contract or tort.’ ‘The general rule is that it is against the policy of the law to permit a plaintiff to prosecute in a second action for what was included in and might have been recovered in the first, because it would harass the defendant, and expose him to double costs.’ Sykes v. Gerber, 98 Pa. St. 179, 183. ‘An entire claim, arising either upon a contract or from a wrong, cannot be divided and made the subject of several suits; and, if several suits be brought for different parts of such a claim, a judgment on the merits in either will be available, as a bar in the other suits.’ Rosenmueller v. Lampe, 89 Ill. 212. In the note to Trevivan v. Lawrence, 2 Smith, Lead. Cas. 799, it is said: ‘With regard to the judgment of a court of record inter partes, the great maxim which governs its effect is res inter alios acta alseri nocere non debit. The rule laid down in the celebrated judgment of DE GREY, C. J., is, it will be recollected, that the judgment is conclusive between the same parties. In Buller's Nisi Prius, 233, the rule, and the reason for the rule, are state to be that ‘the verdict ought...