Burdick v. City of Norwich

Pardee, J. The plaintiff alleged in effect that the defendant so constructed certain sewers as to discharge into a brook a large quantity of water having naturally another outlet; that it “ wrongfully, negligently, improperly and unlawfully used and appropriated” the brook as a sewer; that it “wrongfully, improperly, negligently and unlawfully maintained over and across said brook at a point in the course thereof below said premises of the plaintiff, insufficient culverts, bridges and covered drains ” ; and that thereby the water was “pent up and forced back upon the premises of the plaintiff,” to his damage. He had a verdict, and the defendant moves for a new trial. The Thames Worsted Company had previously recovered a judgment for damages against the defendant for injuries resulting to its property from the same cause, and substantially at the same time. That judgment was based upon a finding that the defendant had converted the stream into a sewer and had assumed and. failed to perform the [228] duty of providing an adequate passage for water discharged into it. Upon the trial of the case below, the court, against the objection of the defendant, received in evidence the record of that judgment. The general rule limits the reception of the record of a judgment as evidence to cases between the parties thereto and privies; to cases between parties upon both of whom it is conclusive. If in the second suit there is a plaintiff against whom it cannot be admitted, he cannot claim it •against the objection of the defendant. The finding that the defendant had assumed duties pertaining to sewers in reference to a certain stream and had neglected them, can not be made to reach beyond the case in which it was made. The present plaintiff charging the same assumption and negligence, the burden was as fully upon him to prove them as if they had never been proven; and the defendant had as full a right to deny the charge and sustain its denial by proof as if no finding had been made against it. It is quite possible that in certain jurisdictions provision is made for the institution of special proceedings for the determination of the question as to whether a city is bound to repair a particular bridge or.culvert or other structure as a duty to the public, in which the public on one side and the corporation on the other are made parties in such manner that the determination concludes all; if it is adverse to the corporation it is not to be allowed thereafter to deny it; if in its favor, it is not to be harassed by repeated suits. But this does not affect the rule as it exists in this jurisdiction, that if an action is instituted by an individual against a municipal corporation for the recovery of damages alleged to have resulted from a defect in a way or bridge, a judgment against the defendant is neither conclusive nor persuasive evidence in behalf of another plaintiff, of any fact supporting it. A new trial is advised. • In this opinion the other judges concurred.