Upon all the issues which were in fact litigated, and which Sargent and the railroad could have litigated in defence of the action but did not, they are concluded by the judgment. MacDonald v. Railway, 71 N. H. 448, 457; Metcalf v. Gilmore, 63 N. H. 174, 189. Hence, as respects the destruction of the storehouse, the only question which was open for the parties to litigate, when this, case was sent back for trial in the superior court, was whether the plaintiffs were in fact guilty of negligence concurring with that of Sargent to produce the loss.
After the action was sent back to the superior court, the declaration was amended by filing an additional count. The subject-matter of this count is entirely different from that of the other; it is the loss occasioned the railroad by the destruction of the two cars — property in which they had a special interest as bailees.
Woodman
v.
Nottingham,
49 N. H. 387, 393. The issues here\_ presented are (1) the liability of Sargent for the loss occasioned
*462
the plaintiffs by the destruction of the cars, and (2) the plaintiffs’ freedom from fault contributing thereto. These issues were not passed upon in the prior action. While certain evidentiary facts bearing upon these issues may be the same as those contested in the prior action, they were not themselves in issue (although controverted), within the meaning of the rule as applied in
King
v.
It follows, therefore, that the parties were not concluded by the judgment in the Rolfes’ suit upon either of the above issues, and that the jury should have been instructed that the judgment was not even evidence to be considered upon the question of Sargent’s liability for the loss of the cars.
If, as respects the Rolfes, it might be found from the evidence that the plaintiffs were negligent in not examining the interior of the car and ascertaining that the defendant was not performing his duty, still it could not be so found as respects the defendant; for when the defendant assumed the control of the interior of the car under the shipping contract, and undertook to equip and heat it, he impliedly agreed with the plaintiffs that he would perform this *463 duty with reasonable care (Boston & Maine R. R. v. Brackett, 71 N. H. 494, 498), which means that he would use a suitable stove, mаnage it in a proper manner, and set it up so that it would withstand the ordinary movements of the car incident to its transportation in a freight train. And the plaintiffs had the right to rely upon his agreement and to understand that he would perform this duty.
Negligence is not a thing, but a relation. “The word ‘negligence ’ implies a duty to use due diligence, and such a duty may be owed to one person and not to another.”
Mowbray
v.
Merryweather,
[1895] 2 Q. B. Div. 640, 647. “If there be no duty, the question of negligence is not reached; for negligence can in law only be predicated upon a failure to use the degree of care required of one by law in the discharge of a duty imposed thereby.”
Dobbins
v.
Railway,
A different situation would have been presented if the plaintiffs had known of the defendant’s negligent conduct, or if there was evidence from which it could have been found that they owed him a duty to know of it. But there was no evidence that the plaintiffs knew, or from which it could have been found that they owed him the duty of ascertaining, that he was negligently heating the car; or that they knew or ought to have known that the car could not be safely heated, if equipped with a suitable stove and managed with reasonable prudence. The location of the potato car' near the storehouse and the second car had nothing to do with its own destruction; and in the absence of evidence that the plaintiffs knew, or as respects the defendant ought to have known, that he would negligently maintain a fire in the stove, they violated no duty which they owed to him in leaving the potato ear near these properties. The evidence as to the shifting of the potato car was that the method used was such as is commonly employed; and *464 this being so, it was the duty of the defendant to exercise such a. degree of care in heating the car as would permit a shift of this kind to be safely made. Had the evidence tended to shоw that, the shift was made in an unusual manner, and with knowledge that the car contained a stove with a fife in it, then there would have been evidence that the plaintiffs violated a duty which they owed to the defendant; but as there was none, it could not be found that the plaintiffs were negligent in this particular.
Agаin, the defendant is estopped by the judgment in the Rolfes’ shit from showing 'that he exercised due care in heating the car, and that the plaintiffs were guilty of actual negligence which was the sole cause of the destruction of the storehouse; for that issue was found against him in that suit.
The question here рresented seems to have first arisen in England in 1895, in the case of Mowbray v. Merryweather, [1895] 1 Q. B. Div. 857, which was in the same year taken to the court of appeals (2 Q. B. Div. 640). The plaintiffs in that case were two stevedores, and the defendant was the owner of a steamship. The plaintiffs undertook to discharge a cargo of deals from the ship, and the defendant promised to provide all necessary and proper appliances reasonably fit for the purpose of discharging the cargo. He supplied a chain so defective that it broke while in use, and a workman of the plaintiffs was injured. The workman sued the plaintiffs, basing his action upon the defective condition of the chain — a defective condition which he alleged might have been discovered by the plaintiffs, by the exercise of reasonable care. The plaintiffs paid the workman ¿6125 and brought their action to recover that sum from the defendant. It was admitted that the sum paid was reasonable, and that the defendant had broken his implied warranty that the chain should be reasonably fit for the purpose for which it was supplied; and the plaintiffs admitted that they might, by the exercise of reasonable care, have discovered the defect in the chain. It was contended by the defendant that the damage to the workman was caused by the plaintiffs’ own want of care, and could not be imputed to the defendant as the natural consequence of the breach of warranty. On the other hаnd, the plaintiffs contended that, they had a right to rely upon the defendant’s warranty; and that as between him and them the cause of action was complete, and the negligence of which they had been guilty, — the failure to carefully examine and test the chain, — was really due to the relianсe they placed on the defendant’s warranty. It was held in the lower court that “ the breach of warranty upon which the plaintiffs relied, and as far as the defendant is concerned had the right to rely, remains, and is the efficient cause of the subsequent mischief,” and *465 that the injury was “ a natural consequence of the breach of warranty.” Upon appeal, the decision of the lower court was affirmed. Lord Esher, M. R., among other things -said: “The plaintiffs owed no duty to the defendant to examine the chain before allowing it to be used by their workman. The only duty which they owed in that respect was tо the workman.” Rigby, L. J., said; “There was no want of due diligence as between the plaintiffs and the defendant, because . . . the warranty means £hat, as between him and the plaintiffs, they may rely on the warranty.”
In
Boston Woven Hose Co.
v.
Kendall,
The principle involved in these cases is not different from that applied where an agent, acting in good faith and in obedience to his principal’s orders, does an act which, if the principal had authority to authorize it, would have been lawful; but not possessing authority, the agent is rendered liable in damages for a tort. In thesе cases it is held that “there is an implied obligation on the part of the principal to indemnify an innocent agent for obeying his orders,” and that he can recover indemnity from his principal. Go
wer
v.
Emery,
Our conclusion is, that as the plaintiffs violated no duty which they owed to the defendant in moving and plaсing the ear where they did, without examining to see how he was heating the ear, it could not be found on the evidence that they were not in the exercise of ordinary care, and the verdict as to the first count must be set aside.
In the previous trial (Boston & Maine R. R. v. Sargent, 70 N. H. 299), the only evidence submitted was the judgment in the Rolfes’ suit and an admission of thе defendant’s counsel tending to show that the plaintiffs were in the exercise of care; and because of the latter piece of evidence, the verdict ordered for the defendant was set aside. But in the present trial, evidence fully *466 disclosing the plaintiffs’ conduct in the ■ management of the cars was presented; and as we have held that it would not support .the verdict of the jury-in favor of the defendant, a verdict should have been directed for the plaintiffs. State v. Harrington, 69 N. H. 496.
With reference to the second count, the instructions to the jury tupon the question of the plaintiffs’ exercise of care were general —that the railroad could not recover if its negligence contributed ifco the destruction of the ears. An exception was taken to this Instruction, and a charge requested to the effect that the railroad «could not be found to be negligent for not investigating the interior of the potato car before leaving the ear where it did, unless tthe jury should find ■ that the railroad or its employees knew the fstove or the fire in it was unsafe, or that there was something in the appearance of the car which indicated that an unsafe fire was ¡being maintained in it. This instruction should have been given for the reasons above stated, and the verdict as to this count is ¡ails© ¡set aside.
In view of the conclusions reached, it is unnecessary to consider the other questions in the case.
Verdict set aside as to the first count, and judgment for the plaintiffs : new trial granted upon the second count.