Hennessy v. Chicago, B. & Q. Ry. Co.

Beard, Justice. ' The plaintiff in error brought this action against the defendants in error to recover damages on account of a personal injury alleged to have been caused by the negligence of defendants. The defendants pleaded former adjudication, and it was stipulated by and between the parties that the questions whether or not the cause of action set forth in the second amended petition in the former action is the same as the cause of action set forth in the petition in this case, and whether or not the judgment in the former case was on the merits, should be submitted to the court and should be determined upon a consideration of the petition in the present case, the second amended petition in the former case, the demurrer thereto and the judgment rendered upon sustaining said demurrer. The matters were submitted to the court upon the motions of defendants for judgment upon the pleading under sáid stipulation. The court sustained the motions and dismissed the action at plaintiff’s costs, and he brings error. The plaintiff alleged in his petition, in substance, that defendant, 'Chicago, Burlington & Quincy Railroad Company, was a corporation and had a roundhouse, machine shops and turntable at Sheridan, in this state, and that defendant, James Murphy, was night foreman of the roundhouse and had charge of the employees therein. That plaintiff was employed by the defendant company as assistant boiler washer and general helper in the roundhouse at night, and that none — 311 — of his usual or ordinary duties required him to go outside of the roundhouse. That shortly after midnight of January 30, 1906, Murphy ordered plaintiff to go outside to the turntable and assist some men to turn it with an engine thereon. That at that time he was a boy of the age of fifteen years and was inexperienced in handling the turntable and unfamiliar with the dangers connected with the same. That the turntable was designed to be turned by a gasoline engine, but when that was out of order it was turned by hand power, and that on the night stated the gasoline engine was out of order. That the turntable was at that time in a defective condition in that when a locomotive was thereon and riot exactly in the center, the side or end of the track, on which the locomotive to be turned stood, bearing the greater weight would settle from six to eight inches. That while plaintiff was pushing against the lever in attempting to turn said locomotive it was moved upon the track causing the lever to be forced down upon plaintiff’s knees thereby causing the arches and bones of his feet to be broken and displaced. That the night was dark and the place was not sufficiently lighted for the employees working thereabout to fairly see and apprehend any movement of men, locomotives, or other objects which might be dangerous; and that defendants did not, nor did anyone else, warn plaintiff of any of the dangers connected with the services required of him in assisting to turn said turntable. That defendants were guilty of negligence in allowing said turntable to become and remain in the defective condition stated; in not warning plaintiff of the dangers involved in his assisting in turning said turntable, and in not installing lights at said turntable. The action was commenced October 3, 1914.. The defendants alleged in their answers that on November 11, 1912, in an action pending in the United States District Court in and for the District of Wyoming, wherein the plaintiff was plaintiff and defendant herein, Chicago, Burlington & Quincy Railroad Company,' was defendant,' — 312 — the plaintiff by leave of court filed a second amended petition in said action, wherein he sought to recover damages for the same cause of action and for the same injuries as set forth in his petition in this action. To that amended petition defendant filed a general demurrer which was by the court sustained and the action dismissed, and judgment entered against plaintiff and in favor of defendant for costs. That said judgment has never been appealed from and is still in force and effect. The second amended petition, the demurrer thereto of defendant, and the judgment in that action are set out in full in the answer of defendant Railroad Co. in this case. The answer alleged that by reason of said judgment the alleged cause of action set forth in the petition in the present case, and all issues, matters and things involved in the present action have been finally determined and adjudicated and the plaintiff is thereby estopped from maintaining this action. The injury alleged to have been sustained by the plaintiff is the same in each case, and the averments with respect to ownership, use, control and location of the roundhouse and turntable, and the manner in which the turntable was operated are substantially the same in each case. In each case the authority of Murphy, his requiring plaintiff to do work not within the scope of his employment, his youth, inexperience and lack of knowledge of the hazards and dangers connected therewith, and the failure to 'instruct or warn him against the dangers attending such work were alleged. In the former case it was also alleged that at the time plaintiff was ordered out to the roundhouse to assist in turning the turntable his clothing and feet were wet from the performance of his duties in the roundhouse and that the night was very cold. The defendant was charged with negligence in requiring him to go out in that condition; that the work required of him was dangerous to the person of one of his age and experience, and in his condition; that defendant was negligent in not warning him of the dangers connected with the work he was required to do, and with which he — 313 — was not familiar. It was further alleged in the petition in that case that plaintiff was required by Murphy to exert his utmost strength in pushing against the lever of the turntable, which he did, thereby causing the arches of his feet to break down. - The contentions of counsel for plaintiff are that the cause of action in the cases is not the same; and that if so, the former decision was not on the merits and therefore did not bar a second action. Both actions were brought to recover damages on account of the same injury alleged to have been caused by the negligence of defendant. In the first case it was alleged, in effect, that plaintiff was required to perform labor which under the circumstances was hazardous and dangerous to his person and at a place and with an appliance which was dangerous, without warning or cautioning him against the danger-. In the present case substantially the same charge is made of the danger attending the work and the failure to warn the plaintiff thereof, and stating more specifically the reasons why it was dangerous ; and alleging in addition to the facts formerly stated that the place was not sufficiently lighted ;• that the night was dark, and that the turntable was out of repair. We think the correct rule is, that for a single injury alleged to have been sustained through the negligence of ■another, the plaintiff must set forth all of the negligent acts of the defendant upon which he claims the right to recover damages. And if he chooses to omit some of them he cannot be permitted thereafter in another action' to bring them forward as a separate cause of action. The general rule is thus stated in Black on Judgments (2nd Ed.), Section 731: “A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action. This rule means, in the — 314 — first place, that the parties must bring forward, in one trial, all the evidence and all the reasons which are extant and can be adduced in support of their respective cases. A litigant cannot experiment with the trial of his cause. After one determination of a suit on the merits, the controversy cannot be re-opened to hear an additional reason, which before existed and was within the knowledge of the party, in support of the same cause of action. Thus, a judgment on the merits in an action for personal injuries, on the ground of defendant’s negligence, is a bar to a second action between the same parties for the same injury, though additional acts of negligence are charged.” (See authorities cited in notes.) In Graham v. Culver, 3 Wyo. 639, on 647, 29 Pac. 270, on page 274, 31 Am. St. Rep. 105, the court quoted with approval from Section 754 of the same work, the following: “A party cannot relitigate matters which he might have interposed but failed to do in a prior action between the same parties or their privies in reference to the same subject matter; and, if one of the parties failed to introduce matter for the consideration of the court that he might have done, he will be presumed to have waived his right to do so. If a party fails to plead a fact he might have pleaded or fails to prove a fact he might have proven, the law can afford him no relief. When a party passes by his opportunity the law will not aid him.” The reasons for the rule are obvious. A party should not be put to the trouble and expenses of defending against an alleged liability in several suits which could and should be determined in a single action; and litigation should not be unnecessarily or unduly prolonged. The present case well illustrates the reasonableness of the rule. If'the contention of counsel for plaintiff should be adopted, then there would be no reason why plaintiff should have alleged more than one of the acts he claims to have been negligence causing or contributing to the injury, for instance, the failure to properly light the place, and to have reserved the alleged defect, in the turntable for another action in the same or — 315 — some other court in case he should be defeated on the former. We think the rule we have announced is fully supported by authority. Van Fleet’s Former Adjudications, Sec. 109; McClain v. Louisville & N. R. Co., 97 Ky. 804, 22 S. W. 325; Greene v. Central of Georgia Ry. Co., 112 Ga. 859, 38 S. E. 360; Anderson v. West Chicago St. R. R. Co., 200 Ill. 329, 65 N. E. 717; Godschalck v. Weber, 247 Ill. 269, 93 N. E. 241; T. H. & I. R. R. Co. v. P. & P. Ry. Co., 81 Ill. App. 435; Clumb v. Webster Mfg. Co., 84 Fed. 592, 28 C. C. A. 225, 43 L. R. A. 195, wherein the court said: “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 resort to several trials and to different 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.” We think it is settled upon principle and authority that if the judgment of -the Federal Court was upon the merits, that judgment is a bar to the present action. It is not claimed that the demurrer in that court was sustained on account of any technical defect in the petition; but the argument here is that the matters pleaded in this action were not there involved. That the demand in the present suit arose o.ut of the same occurrence and that the damages claimed are for’ the same injury suffered, at the same time is not denied. Both actions are based on negligence of defendant, and, as shown in the former part of this opinion, the judgment in the former action adjudicated not only the matters, grounds and reasons for a recovery then pleaded, but also all matters which could properly have been set forth and determined in that suit. That plaintiff had the opportunity in the former action, to plead all acts of commission or omission which he claimed- con — 316 — stituted negligence on the part of defendant which caused or contributed to the injury cannot be doubted. He twice amended his petition in that court, and if he-failed to set forth all of the grounds or reasons which he claimed entitled him to recover it was his own fault, and he cannot be permitted to re-open and re-litigate matters which he could and should have presented in the first action. The judgment of the Federal Court was upon the merits of the cause of action as plaintiff saw fit to present it, and “a judgment on demurrer, going to the merits of the action, is as perfect a bar to a second suit on the same demand or cause of action as a judgment on a verdict finding all the facts.” (Straw v. Illinois Cent. R. Co., 73 Miss. 446, 18 So. 847.) “The general rule of the extent of the bar is not only what was pleaded or litigated, but what could have been pleaded or litigated.” (Northern Pacific Ry. v. Slaght, 205 U. S. 122, 27 Sup. Ct. 442, 51 L. Ed. 738.) See also Lamb v. Mc-Conkey, et al., 76 Ia. 47, 40 N. W. 77; Trainor v. Maverick L. & T. Co., 92 Neb. 821, 139 N. W. 666; Green v. Central of Georgia Ry. Co., 112 Ga. 859, 38 S. E. 360. For the reasons stated, we are of the opinion that the district court did not err in holding that the action in the federal court was a bar to the present action. The judgment, therefore, is affirmed. Affirmed. Potter, C. J., and Scott, J., concur.