Straw v. Illinois Central Railroad

| Miss. | Oct 15, 1895

Woods, J.,

delivered the opinion of the court.

A judgment on demurrer, going to the merits of the action, is as perfect bar to a second suit on the same demand or cause of action, as a judgment on a verdict finding all the facts. This proposition is fundamental in the present case, and is elementary. We understand that there is no disagreement between counsel on this point.

That the parties to the former suit and to the present suit are the same, is admitted, and that the demand of appellant arose out of one and the same occurrence is not denied. In the former suit the claim or demand of the appellant for damages for personal injuries sustained' by him because of the appellee’s negligence, was based upon the action of the section master in wrongfully ordering the appellant to board a moving train, and, in attempted obedience to which order, appellant was thrown upon 'the track and thereby received the injuries complained of. ■ In the present suit by the same plaintiff against the same defendant on the same claim for damages growing-out of the same transaction, the right to a recovery is grounded upon the same wrongful and negligent action of the same section master in ordering the appellant to board a moving train, and, in addition, a new incident or condition, alleged to have been conducive to the injury complained of, is introduced into the declaration, viz., the pulling out of its socket of a standard insecurely fastened when the appellant attempted to board the moving train under the order of the section master.

The record of the former suit shows that the court having jurisdiction of that action sustained the demurrer to the declaration on all the grounds specially assigned. Among other causes of demurrer specially assigned was this one, viz., that the declaration showed the plaintiff to have been guilty of contributory negligence. Now, the action of that court in sustaining the demurrer on all the grounds assigned was an adjudication that the plaintiff [the appellant here) was guilty of contributory negligence in the affair out of which his claim arose.

There was no appeal from that judgment in the former suit, and the declaration in the present suit sets out the same conduct of appellant which, in the other case, was adjudged contributory negligence on his part. So we have an adjudication, unappealed from, denying the right to recovery because of the plaintiff’s contributory negligence in the transaction in which he was injured, both shown by him in his declaration in the former suit, and again shown in the present action.

Whether that former adjudication was right is not the subject of inquiry here now. It stands unappealed from, and it is, as it appears to us, decisive of the issue now presented to us, for it is the judgment of a court of competent j urisdiction that, in the transaction in which the injury occurred, and of which complaint is here made in this second suit, the plaintiff was guilty of contributory negligence.

For a fresh and vigorous exposition of this question, see Kleinschmidt v. Binzel, 43 Am. St. Rep., 604, and Fahey v. Esterley Machine Co., 44 Am. St. Rep., 554 and notes.

Affirmed.

Williamson c&'Potter, for the appellant,

Filed a suggestion of error to the following effect: The only thing in the first declaration that suggests a good cause of action is the averment ‘ ‘ that the boarding of the train of cars, while so in motion, was attended with great danger, of which plaintiff was not then fully aware. ’ ’ There was no averment showing of what the unknown danger consisted, and the court could not, of course, impute negligence to the company on a declaration that failed to disclose the wrongful act that created the hazard. The second declaration shows that this danger resulted from the defective condition of the standard, which was the only means provided for getting on the cars the plaintiff was ordered to board, and which it was customary to use for the purpose of mounting upon the cars. • The first declaration alleged nothing in the way of negligence upon which a right of action could be founded, and no question of identity can therefore arise.

The mounting upon moving trains being incidental to the employment of the appellant, cannot be treated as constituting contributory negligence, and there was nothing else in the first declaration to which that ground of demurrer could relate. No such issue was raised by the pleadings, unless the mere suggestion in the demurrer makes the issue.

Suggestion of error overruled.