152 Iowa 164 | Iowa | 1911
The plaintiff alleged that a car of coal had been placed alongside the appellant’s engine room, and that he was ordered to unload it, though such work was not in the line of his employment; that, in attempting to board the car for the purpose of unloading it, one of the iron handholds on the car gave way, and he was violently precipitated to the ground and injured. . It was alleged that the defendant was negligent in not providng the plaintiff a safe place to work and in ordering him upon said car. In its answer the defendant alleged that the car in question was the. property of the Chicago Great Western Bailway Company, then in the possession of and being operated by receivers, and that the plaintiff had theretofore brought an action against said railway company and the
It is contended that the liability of the railway company and the defendant was joint and several, that the railway company was primarily liable, and that the judgment on the merits in its favor in the same cause of action is a bar to the present action. It is a well-recognized rule that, where one party has the right of recovery over against •another, a judgment in favor of one primarily liable may be pleaded by the other as a bar to an action against him on the same cause of action. 23 Cyc. 1271; 2 Van Fleet, Former Adjudication, section 572; Anderson v. Fleming, 160 Ind. 597 (67 N. E. 443, 66 L. R. A. 119) ; Emery v. Fowler, 39 Me. 326 (63 Am. Dec. 627). This rule' is not denied by the plaintiff. He contends, however, that it can not be invoked in this case, because the cause of
Conceding that both petitions presented the identical issue so far as the condition of the car was concerned, the present petition alleged the additional ground of negligence that we have referred to. It may have been found in the other case that the defective condition of the car was not the proximate cause of the plaintiff’s injuries. The question of proximate cause is usually a question for the jury, and in that trial it may have found that ordering the plaintiff into an unsafe place to work was the immediate cause of his injuries, in which event there would be no liability on the part of the railway company. The defendant says in argument that the motion to strike should be treated as a demurrer, and that, so treated, it admitted that the causes of action were the same, because the answer so alleged. We think the motion should be treated as a demurrer. But a demurrer admits only such facts as are well pleaded, and the allegation in the answer that the causes of actions were the same was merely a conclusion of the pleader. The facts upon which such conclusion was based were to be found in the petition and answer in the instant case, and going to them it was manifest that the causes of action were not the same. Our conclusion is