Hartman v. Pittsburg Incline Plane Co.

2 Pa. Super. 123 | Pa. Super. Ct. | 1896

Opinion by

Reeder, J.,

Marianne Hartman, the plaintiff, has a life interest in a property of the full use and enjoyment of which she claims she is deprived by the construction by the defendant of its incline plane upon adjoining land. A similar action was tried before in Allegheny county between the same parties and upon the trial a compulsory nonsuit was entered. The Supreme Court, upon appeal reversed the judgment: Hartman v. Incline Co., 159 Pa. 442. The case was subsequently called for trial in the court below, a jury sworn and all the witnesses for the plaintiff examined when the defendant tendered a judgment for the amount of the plaintiff’s claim. This action was at once brought for the continuing loss to her. The defendant assigns for error the admission in evidence by the court below of the record in the former trial, claiming that there was a variance between the statements of claim in that case and in this inasmuch as in the first case the statement claimed consequential damages and this statement does not and therefore the causes of action are not the same. When the case was before the Supreme Court it was held that there could be no recovery for the consequential damages and therefore that portion of the plaintiff’s claim was eliminated from consideration upon the retrial of the cause. The remaining assignments of error all related to the action of the court below in holding that the negligence of the defendant’s structure and the liability therefor were determined in the first suit and the finding of the jury in that action is conclusive. This is such a well settled doctrine in this state that it is no longer open to controversy. As early as 1828 Kilheffer v. Herr, 17 S. & R. 319, it was decided that “in an action upon the case for the continuance of a nuisance in erecting a dam a verdict and judgment for the plaintiff in a former action, in which the same matter was in controversy between the parties, are conclusive evidence as to the existence of the nuisance.” This has been followed in a long line of cases. Even as recently as Schwan v. Kelly, 173 Pa. 71, the Supreme Court have said “ The rule that what has been judicially determined shall not again be made the subject of controversy extends to every question in the proceedings which was legally cognizable.” It is said by the appellant in its argument that it does not dispute this well established doctrine, but contends that the judgment according to the record in the first trial does not legally show a claim for a nuisance and is therefore not conclusive as to its existence. We do not see any force in tins contention. The plaintiff claims that the defendant’s structure was so imperfectly and negligently built as in one case to throw water from the overhead structure upon the side of her building and in the other by building its masonry against the plaintiff’s wall so as to keep her house damp and make certain of her rooms untenantable. This is the nuisance for which she claims damages in both actions. The finding of the jury in the first action that there was a negligent and faulty structure was therefore conclusive in this and the action of the court was proper in withdrawing that fact from the consideration of the jury. We have already said in the first part of this opinion that the variance between the first and second statement in that there was a claim for consequential damages in the first which was omitted in the second statement is immaterial, as that question was eliminated from consideration in this case by the decision of the Supreme Court in the first case between these parties. The action of the court in a second trial as to the conclusiveness of the fact found in a prior trial between the parties is to be governed by the facts as submitted to and found by the jury and not by the claims contained in the statement.

Judgment affirmed.