The duty is imposed upon the Washington Gas Light Company by the
terms of its charter, the nature of its business, and the uses to
which gas boxes placed in the sidewalks of the city of Washington
are put, as an appliance ordinarily used by the company to connect
its mains with a house where gas is to be used, to supervise and
keep those gas boxes in order, and if an injury happens to a person
by reason of one of those boxes' being out of order and in need of
repair and unsafe, and an action is brought against the District of
Columbia to recover damages for such injury, and the Gas Company is
notified and is given an opportunity to defend, and a trial is had
resulting in a verdict and judgment for the plaintiff against the
District which the District is obliged to pay, the District has a
cause of action against the Gas Company, resulting from these
facts.
In such action, for the purpose of ascertaining the subject
matter of the controversy between the person who was injured and
the District, and fixing the scope of the thing adjudged, the
entire record, including the testimony offered, may be
examined.
The judgment against the District, rendered after notice to the
Gas Company and after opportunity afforded it to defend, is
conclusive of the liability of the company to the District.
In July, 1879, Marietta M. Parker sued the District of Columbia
to recover damages for an injury to her person alleged to have been
suffered from stepping into a certain "deep and dangerous hole" in
the sidewalk of one of the streets of the City of Washington. The
declaration contained all the essential averments necessary to fix
liability on the corporation. Prior to the bringing of the suit,
when Mrs. Parker first made demand against the District, the latter
notified the Washington Gaslight Company (spoken of hereafter as
the "Gas Company") that it would be expected to indemnify the
District for any amount which it might be compelled to pay to Mrs.
Parker, and when the suit was commenced, the gas company was also
informed, and opportunity was afforded
Page 161 U. S. 317
that company to defend. The proffer was not availed of,
although, on the trial of the cause, which resulted in a verdict
and judgment against the District for five thousand dollars,
officers of the gas company testified, and the counsel of that
company was present during a portion of the trial, but purposely
abstained from taking part in the defense. The action now here was
brought by the District of Columbia against the gas company to
recover over the amount of the judgment obtained by Mrs. Parker
against the District, and which had been paid by it. The cause of
action relied on to sustain this recovery was briefly as follows:
that "the deep and dangerous hole" averred by Mrs. Parker to have
existed, and which she alleged to have been the cause of her
injury, and upon which her recovery was had, was proven on the
trial of her case to have been an open gas box placed and
maintained in the sidewalk by the gas company for its own use and
benefit, and which it was its duty to repair; that this duty had
been grossly neglected by allowing the box to remain unrepaired,
thus causing the injury for which the city had been held liable.
The declaration, moreover, averred notice to the gas company, and
the fact that adequate opportunity was given it to defend, and the
failure of the gas company to act in defense of the suit. To this
demand the defendant, the gas company, filed a plea of the general
issue, and by stipulation it was agreed that it might thereunder
avail itself of any defense which it might have.
On the trial of the cause, before a jury, testimony was
introduced tending to show that the gas box or stopcock box in
question was placed by the gas company in the sidewalk in the City
of Washington in 1873, this gas box being one of the customary
appliances used by the company when connecting its mains with a
house where gas was to be used; that this box consisted of an iron
cylinder four inches wide and two and a half feet deep, with an
iron cover. The box served the purpose of affording access to a
cock in the service pipe, which latter conducted the gas from the
main of the company to the gas meter in the house, whence it was
carried to the burners. By means of this box or cylinder, on
removing the cover therefrom
Page 161 U. S. 318
with a key made for the purpose, the cock in the service pipe
could be reached, and the gas be thus turned on or off from the
house. It was, moreover, shown that this box was placed in the
sidewalk so as to be level with its surface, and that the cover
thereon was held in place by lugs which slipped into slots made for
the purpose. In addition, it was proven that the box was put in by
the company in accordance with the general methods used for
introducing gas, and in compliance with the form of structure
pointed out by an ordinance of the Board of Common Council of the
City of Washington passed in March, 1868. Both parties introduced
proof showing that the service pipe, the stopcock therein, and the
gas box were put in at the request of the owner of the premises in
front of which they were situated; that they were constructed by
the gas company, which furnished the materials, and worked as any
other plumber would have done, being paid therefor by the owner of
the premises; that in order to do this work, the company had first
to obtain permission to open the street to make the requisite
connections, and had paid to the District a permit fee of one
dollar. There was, moreover, proof tending to show that, when the
gas box was first put in, the work was skillfully done; that it was
originally placed in a brick footway then existing and near the
curbstone, but that subsequently the Board of Public Works of the
District of Columbia widened the footway, and in consequence of
this widening the gas box came to be about in the middle of the
sidewalk.
Testimony was also introduced tending to show that where the
owners of private property paid the gas company the cost of laying
lateral service pipes and connections with the street mains, and
discontinued the use of gas in the premises, they would not be
permitted to remove the same; that an adjoining private property
owner was never permitted to have a key to the gas box, and that
the defendant has, so far as such property owners are concerned,
maintained and exercised exclusive supervision and control of the
same. There was evidence also introduced tending to show that the
defendant had men employed whose duty it was to examine, about the
first of
Page 161 U. S. 319
each month, the condition of the meters in every house
throughout the District into which gas had been introduced by the
defendant, and that it was the duty of these employees to notice
and report whether the gas boxes in the sidewalks were uncovered or
out of order. The evidence moreover tended to establish that the
superintendent of the gas company, when his attention had been
called to the fact that gas boxes needed repair, had often caused
such repair to be done by having the covers put on, or doing any
other required work. To the contrary, proof was also introduced
tending to show that after the gas boxes were put in, the gas
company took no further care or charge of them.
The District offered in evidence the record of the suit brought
by Mrs. Parker, and made proof that it paid the amount of the
judgment therein rendered. The testimony which had been given by
Mrs. Parker on the trial of that case was also offered in evidence,
and admitted over objection, although no exception was reserved.
This testimony tended to show that the sole cause of the injury for
which she sued and had recovered was an open gas box, in which,
while walking on the street, her foot had become engaged. The
deposition of Mrs. Parker taken in the case on trial was also
offered in evidence by the District, and contained the following
description of the accident:
"The accident occurred in front of 121 C Street, N.E., about 5
o'clock in the afternoon of March 10, A.D. 1879. The immediate
cause of the accident was an open gas box in about the center of
the sidewalk. It was a perfect trap, as it was upon a level of the
sidewalk, except at the side I stepped into, and there was a part
of a brick sunk at least an inch and a half below the level of the
walk, so that anyone, in walking along, could not see but the
pavement was level until, like myself, when too late. Had not the
half of the brick been sunken, the open hole would not have been so
dangerous, for, upon stepping into the hole, I tried to step back,
when I found my box-toe shoe fast in the hole, and the sunken brick
let my heel down with my entire weight, one and one-half inches
more than would have occurred had the pavement been perfect around
the gas box. "
Page 161 U. S. 320
The District, moreover, after proving the death of H. Clay
Smith, a witness who had testified in the original suit, and the
loss of the notes of his testimony, offered to prove by the
stenographer who had taken the original notes what had been Smith's
testimony. This was objected to, and, on its being overruled,
exception was reserved. The stenographer testified that Smith had,
on the original trial, sworn that he lived within a few doors of
the place where the Parker accident happened, and had noticed the
gas box which caused the accident to be out of order "for two or
three weeks prior to the accident to Mrs. Parker, and that he did
not know how the top of the box came off, but he had noticed
it."
At the close of the testimony offered in behalf of the District,
the defendant company requested a peremptory instruction in its
favor, which was refused, and exception was taken. The plaintiff
then asked for the following instructions: first, that the
obligation of supervising and keeping the gas box in order rested
on the gas company, and that if it had neglected so to do, after
actual notice of its being out of order, or after such condition
had existed for a sufficient length of time to have enabled the
company, with reasonable diligence, to have discovered it, the gas
company was liable; second, that if the company had notice of, and
opportunity to defend, the original suit, it was bound by the
judgment therein rendered. These instructions were given. The
defendant company asked for several instructions, which were
refused, and exceptions were reserved, consequent on such refusal.
They were first, that the gas company was not obliged to keep the
box in order; second, that, even if it was originally so bound, the
widening of the footwalk by the city, and the consequent shifting
of the box to the middle of the sidewalk, had relieved it of such
obligation; third, that if the jury found from the evidence that
the injury of Mrs. Parker was caused, in whole or in part, from a
defect in the sidewalk alongside of the gas box, the defendant
should have a verdict; fourth, if the jury found from the evidence
that the injury for which Mrs. Parker recovered was caused by the
fault of both parties to the suit, the defendant was also entitled
to a verdict. This last request
Page 161 U. S. 321
the court declined to give on the ground that it was already
covered by a general instruction given. The court, in its general
charge, instructed the jury substantially as follows: that the
primary duty rested on the gas company to repair and keep the gas
box in order; hence, if the District had been compelled to pay as a
result of the negligence of the gas company in discharging its
legal obligation, the District was entitled to recover the amount;
that, notice having been given of the demand made by Mrs. Parker,
and of the suit brought by her, and an opportunity having been
afforded the gas company to defend the same, the judgment in such
suit was the thing adjudged against the defendant company, as to
the matters which it concluded. It also instructed that, as the
original action was for an accident caused by a "deep and dangerous
hole," it was lawful and necessary to go beyond the face of the
complaint and ascertain from the evidence whether the deep and
dangerous hole referred to was the gas box of the defendant
company; that the jury were to determine, by an examination of the
testimony offered in that case, whether the verdict in the first
suit was alone based on the gas box. If so, the District was
entitled to recover. If, on the other hand, the jury found that the
controversy in the first suit involved the question of liability on
the part of the city for the gas box and also for defective bricks
around it, then it was the duty of the jury to ascertain whether
the judgment which had been rendered against the city was because
of the defective gas box, or because of both the defect in the gas
box and the bricks, and if the jury found that the judgment had
been rendered in the former suit solely on the ground of the
defective gas box, that judgment would be conclusive. If there was
doubt on what ground the jury in the previous suit found its
verdict, if the question of the gas box and bricks was before it,
then the judgment would not be conclusive, and it would be an open
question for the jury to weigh the evidence which might be produced
on the subject, irrespective of the former judgment. If, in that
contingency, the jury were satisfied that the injury could not have
happened but for the depression in the sidewalk occasioned by the
bricks, or that the
Page 161 U. S. 322
injury was aggravated by that fact so that "they could not
apportion the injury between the gas box and the sidewalk,� quite a
grave question presents itself.
On this grave question the court instructed:
"If you can come to the conclusion that this depression in the
sidewalk was one of the joint causes of the injury, I feel bound to
say that I do not see how the District of Columbia could recover
damages from the gas company. If, on the other hand, you are
satisfied that the defect in the pavement played no conspicuous
part in the injury, but that it was wholly due to the exposed
condition of this gas box, then only one question remains, and that
is whether the gas company was negligent in regard to the condition
of that box, and whether its exposed condition was due to the
negligence of the company."
On the subject of negligence of the gas company, the court
instructed that the former judgment did not conclusively fix upon
the defendant the charge of negligence; that the negligence of the
company might be ascertained from two conditions -- either proof of
actual negligence or of such failure to repair for a sufficient
length of time as would justify the implication of negligence.
There was a verdict and judgment for the plaintiff, the District of
Columbia, and on appeal it was affirmed by the Supreme Court of the
District, sitting in general term. The opinion of the general term
is reported in 20 Dist.Col. 39. Thereafter the case was brought by
error here.
MR. JUSTICE WHITE, after stating the case, delivered the opinion
of the Court.
The questions raised by the various assignments of error are:
first, did the legal obligation primarily rest on the gas company
to repair and keep the gas box in good order? Second, was that
company liable over to the District in consequence
Page 161 U. S. 323
of its failure to do so? Third, was the testimony of Smith, the
witness in the original suit, admissible? Fourth, was the judgment
rendered against the District conclusive against the gas
company?
We will consider these questions in the order stated.
First. Did the legal duty rest primarily on the gas company
to repair and keep the gas box in order?
The Gas Light company was incorporated by an Act of Congress,
approved July 8, 1848, and it was empowered
"to manufacture, make, and sell gas . . . to be used for the
purpose of lighting the City of Washington, or the streets thereof,
and any buildings, manufactories, or houses therein contained and
situate, and to lay pipes for the purpose of conducting gas in any
of the streets, avenues, and alleys of said city, . . .
provided, however, that the said pipes should be laid
subject to such conditions and in compliance with such regulations
as the corporation of Washington may from time to time
prescribe."
The trial court instructed the jury that the gas box was a part
of the apparatus of the company, and hence it was its duty to
exercise proper care over it, and thus to prevent injury to persons
using the sidewalk. The contention that this instruction was
erroneous is based on the assertion that the gas box was not, and
could not become, a part of the apparatus of that company, because,
under its charter, only those things which were necessary in the
manufacture of gas and which were needed to convey it after
manufacture into and through the streets can be treated as part of
its works. The proposition is without foundation. The plain object
contemplated by the formation of the gas company was the supplying
of the gas to be by it manufactured to consumers, and it is obvious
that this could not be done without making a connection between the
street mains and abutting dwellings. When such connections are made
with the mains, they receive from them, and convey into dwellings,
highly inflammable material, which flows by an uninterrupted
channel from the mains themselves into such dwellings. It must
therefore have necessarily been contemplated that such connections
with the
Page 161 U. S. 324
mains as were, from their very nature, incidental to and
inseparably connected with the consumption of gas, should be a part
of the apparatus of the gas company, and be under its control,
rather than under that of the city or the property owner. Indeed,
the control by the gas company of the connection from its mains to
the point of use is as absolutely necessary to make it possible for
such company to carry out the very purpose of its charter as are
the retorts and mains. Moreover, the provision of the charter
already quoted shows that it was thereby contemplated that the
connections between the company's mains and the places where the
gas was to be consumed should be made by the gas company, and
become a part of its apparatus. The charter does not confer the
power to lay pipes upon those desiring a supply of gas, but gives
such power to the company.
The danger of serious damage to the public at large and to the
property of individuals, and to the mains and other works and
apparatus of the company by intermeddling of third parties would be
precisely as great in the case of the lateral service pipes and the
gas boxes placed in the sidewalks as in the case of interference
with street mains. The necessity for affording protection to the
company against such interference undoubtedly led to the enactment
of the eighth section of the company's charter, wherein it is
provided:
"That if any person or persons shall willfully do or cause to be
done any act or acts whatever whereby the works of said
corporation, or any pipe, conduit, plug, cock, reservoir, or any
engine, machine, or structure, or any matter or thing appertaining
to the same, shall be stopped, obstructed, impaired, weakened,
injured, or destroyed, the person or persons so offending shall
forfeit and pay to the said corporation double the amount of the
damage sustained by means of such offense or injury, to be
recovered in the name of the said corporation, with costs of suit,
in any action of debt, to be brought in any court having cognizance
thereof."
The authority of the company over the gas boxes and its
correlative duty to supervise and keep them in order thus deduced
from the terms of the charter, the nature of its
Page 161 U. S. 325
business, and the use to which the gas boxes are applied is also
sustained by authority. In
Commonwealth v. Lowell Gas Light
Company, 12 Allen 77, 77-78, the court, in considering the
question of what was the machinery and appliances of such company,
said:
"The mains or pipes laid down in the streets and elsewhere to
distribute the gas among those who are to consume it were clearly a
part of the apparatus necessary to be used by the corporation in
order to accomplish the object for which it was established. They
constituted a part of the machinery by means of which the corporate
business was carried on, in the same manner as pipes attached to a
pump or fire engine for the distribution of water, or wheels in a
mill, which communicate motion to looms and spindles, or the pipes
attached to a steam engine to convey and distribute heat and steam
for manufacturing purposes, make a portion of the machinery of the
mill in which they are used. Indeed, in a broad, comprehensive, and
legitimate sense, the entire apparatus by which gas is manufactured
constitutes one great integral machine, consisting of retorts,
station meters, gas holders, street mains, service pipes, and
consumers' meters, all connecting and operating together, by means
of which the initial, intermediate, and final processes are carried
on, from its generation in the retort to its delivery for the use
of consumers."
It would be unreasonable to infer that Congress, when it
authorized the use of the streets or sidewalks for the purposes of
the gas company's business, contemplated that the City of
Washington, or its successor, the District of Columbia, should keep
in repair such apparatus, the continued location of which in the
sidewalks of the city was permitted, not only as an incident to the
right to make and sell gas, but also for the pecuniary benefit of
the gas company. We conclude, therefore, that the duty was imposed
upon the gas company to supervise and keep the gas box in repair.
This duty not only does not conflict with the charter of the
company, but, on the contrary, is sanctioned by its tenor, and is
imposed as an inevitable accessory of the powers which the charter
confers. Nor do we think that this duty was affected by the
circumstances
Page 161 U. S. 326
that the cost of the labor and materials used in the
construction of the connection and gas box was paid by an occupant
or owner of property who desired to be furnished with gas. As the
service pipe and stopcock was a part of the apparatus of the
company, and was used for the purpose of its business, it is
entirely immaterial who paid the cost, or might, in law, on the
cessation of the use of the service pipe and gas box by the
company, be regarded as the owner of the mere materials. Certainly
it would not be claimed that, if the box and its connections became
so defective or out of repair that gas escaped therefrom and caused
injury, the company could legally assert that it was under no
obligation to take care of the apparatus, because of the
circumstance that it had been compensated by others for its outlay
in the construction of the receptacles from which the gas had
escaped.
The argument seeking to distinguish between the service pipe and
other appliances of the gas company and the gas box, so as to make
the company liable for the one and not for the other, is without
merit. All these appliances were parts of the one structure, put in
position and used together for the purposes of the company. There
is nothing in the record even tending to show that such box was not
one of the usual appliances of a gas company. It was manifestly
treated as one of such instrumentalities, since it was put in the
sidewalk as part of the works constructed for the purpose of
introducing gas into the premises.
Nor are the foregoing conclusions weakened by the provisions of
the city ordinance of March, 1866. That ordinance made it
obligatory to construct service connections with the mains wherever
the streets were ordered paved, without regard to an existing or
immediately expected necessity for such service. The purpose of the
ordinance was to secure connections for both gas and water before
streets were paved, thus obviating the tearing up of the pavement
when once laid. Whether the company, under its charter and the laws
relating thereto, would be compelled to make, or allow to be made,
indefinite service connections with vacant property need not be
considered, because its determination bears no relation to the
question
Page 161 U. S. 327
whether the company is bound to keep its appliances, when
constructed, in safe condition. In leaving this branch of the case,
however, we add that it is clear from the proof that the gas box in
question was not constructed in consequence of a duty imposed by
this ordinance. It was put in place by the company voluntarily at
the request of the property owner for service. The work was done by
the company upon a permit given by the District allowing the
opening of an existing street and the sidewalk thereon.
Second. Had the District a cause of action against the gas
company resulting from the fact that it had been condemned to pay
damages occasioned by the defective gas box, which it was the duty
of the gas company to supervise and repair?
An affirmative answer to this proposition is rendered necessary
by both principle and authority. This Court said in
Chicago v.
Robbins, 2 Black 418,
67 U. S.
422:
"It is well settled that a municipal corporation, having the
exclusive care and control of the streets, is obliged to see that
they are kept safe for the passage of persons and property and to
abate all nuisances that might prove dangerous, and if this plain
duty is neglected and anyone is injured, it is liable for the
damages sustained. The corporation has, however, a remedy over
against the party that is in fault, and has so used the streets as
to produce the injury, unless it was also a wrongdoer."
And the same doctrine is reiterated, in almost the identical
language, in
Robbins v.
Chicago, 4 Wall. 657,
71 U. S.
670.
The principle thus announced qualifies and restrains within just
limits the rigor of the rule which forbids recourse between
wrongdoers. In the leading case of
Lowell v. Boston &
Lowell Railroad, 23 Pick. 24, 32, the doctrine was thus
stated:
"Our law, however, does not in every case disallow an action by
one wrongdoer against another to recover damages incurred in
consequence of their joint offense. The rule is
in pari
delicto, potior est conditio defendentis. If the parties are
not equally criminal, the principal delinquent may be held
responsible to his co-delinquent for damages incurred by their
joint offense. In respect to offenses in which is involved any
moral delinquency or turpitude, all parties are deemed equally
guilty,
Page 161 U. S. 328
and courts will not inquire into their relative guilt. But where
the offense is merely
malum prohibitum and is in no
respect immoral, it is not against the policy of the law to inquire
into the relative delinquency of the parties, and to administer
justice between them although both parties are wrongdoers."
In
Brooklyn v. Brooklyn City Railroad, 47 N.Y. 475, the
same rule was applied, the court saying:
"Where the parties are not equally criminal, the principal
delinquent may be held responsible to a co-delinquent for damage
paid by reason of the offense in which both were concerned, in
different degrees, as perpetrators."
All the cases referred to involved only the right of a municipal
corporation to recover over the amount of the damages for which it
had been held liable in consequence of a defective street,
occasioned by the neglect or failure of another to perform his
legal duty. The rule, however, is not predicated on the peculiar or
exceptional rights of municipal corporations. It is general in its
nature. It has been applied to public piers.
Oceanic Steam
Navigation Co. v. Compania Transatlantica Espanola, 144 N.Y.
663,
ib., 134 N.Y. 461; to the right of a property owner
to recover for damages which he had been compelled to pay for a
defective wire attached by a gas light company to the chimney of
the owner's house,
Gray v. Boston Gas Light Co., 114 Mass.
149; to the right of a master to recover over the damages which he
had been obliged to pay in consequence of a servant's negligence,
Grand Trunk Railway Co. v. Latham, 63 Me. 177;
Smith
v. Foran, 43 Conn. 244. Indeed, the cases which illustrate the
rule and its application to many conditions of fact are too
numerous for citation, and are collected in the textbooks. Wharton,
Neg. 246; 2 Thomp., Neg. 789, 1061; Sherman & Redfield, Neg.
(4th ed.) sec. 301; 2 Dillon, Municipal Corporations, sec. 1035,
and cases there referred to in note.
Third. Was the testimony of Smith, the witness in the
original action, admissible for the purpose of throwing light on
the record of that action in order to show the subject matter there
in controversy, and thereby to assist in the ascertainment of what
was concluded by the judgment therein rendered?
Page 161 U. S. 329
No question is made as to the adequacy of the foundation laid
for the introduction of the secondary evidence. The sole
controversy presented is the admissibility of the testimony. The
bill of exceptions is general, and specifies no particular
objection. Clearly, even although it be conceded that the testimony
of the witness given on the first trial was
res inter
alios as to the defendant in this action, and was therefore
not admissible as going to establish substantive facts, yet
obviously it was competent for the purpose of throwing light upon
the record of the first action, and thus elucidating the
determination of the question of what was the subject matter
covered by the judgment rendered in that action. The contention of
the plaintiff was that the judgment in the first action was based
on the liability of the District for the defective gas box, and was
conclusive as against the defendant in this suit. The elementary
rule is that, for the purpose of ascertaining the subject matter of
a controversy and fixing the scope of the thing adjudged, the
entire record, including the testimony offered in the suit, may be
examined.
Russell v. Place, 94 U. S.
606,
94 U. S.
609-610;
Cromwell v. County of Sac,
94 U. S. 351,
94 U. S.
355-356;
Lewis v. Ocean Navigation & Pier
Co., 125 N.Y. 341, 348;
Littleton v. Richardson, 34
N.H. 179, 188; Freeman on Judgments § 273, and authorities there
cited.
Fourth. Was the judgment against the District, rendered
after notice to the gas company and opportunity afforded it to
defend, conclusive of the liability of the gas company to the
District?
As a deduction from the recognized right to recover over, it is
settled that where one having such right is sued, the judgment
rendered against him is conclusive upon the person liable over,
provided notice be given to the latter and full opportunity be
afforded him to defend the action. There is here no question of the
sufficiency of the notice or of the ample adequacy of the
opportunity given the gas company to defend the suit had it elected
to do so.
In both
Chicago v. Robbins and
Robbins v. Chicago,
ub. supra, this Court, after announcing the rule as to the
liability over, in the language already quoted, also held that
where, in the
Page 161 U. S. 330
first suit, proper notice was given to the party liable over,
the first judgment would be conclusive against the latter in the
action to recover over. In
Boston v. Worthington, 10 Gray,
496, 498-499, the language of the court in
Littleton v.
Richardson, 34 N.H. 187, was quoted and adopted:
"When a person is responsible over to another, either by
operation of law or by express contract, and he is duly notified of
the pendency of the suit and requested to take upon him the defense
of it, he is no longer regarded as a stranger, because he has the
right to appear and defend the action, and has the same means and
advantages of controverting the claim as if he were the real and
nominal party upon the record. In every such case, if due notice is
given to such person, the judgment, if obtained without fraud or
collusion, will be conclusive against him, whether he has appeared
or not."
In
Oceanic Steam Navigation Co. v. Compania Transatlantica
Espanola, 144 N.Y. 663, 665, the rule is thus stated:
"It is sufficient that the party against whom ultimate liability
is claimed is fully and fairly informed of the claim, and that the
action is pending, with full opportunity to defend or to
participate in the defense. If he then neglects or refuses to make
any defense he may have, the judgment will bind him in the same way
and to the same extent as if he had been made a party to the
record.
Village of Port Jervis v. First Nat. Bank, 96 N.Y.
550;
City of Rochester v. Montgomery, 72 N.Y. 65;
Albany City Savings Inst. v. Burdick, 87 N.Y. 40, 45;
Andrews v. Gillespie, 47 N.Y. 487;
Heiser v.
Hatch, 86 N.Y. 614."
The foregoing rulings are supported by many decided cases.
Portland v. Richardson, 54 Me. 46;
Veazie v. Penobscot
Railroad, 49 Me. 119;
Reggio v. Braggiotti, 7 Cush.
166;
Westfield v. Mayo, 122 Mass. 100;
Littleton v.
Richardson, 34 N.H. 179, 187, and authorities there cited;
Westchester v. Apple, 35 Penn.St. 284;
Cattermin v.
Frankfort, 79 Ind. 547.
See also 2 Dillon on
Municipal Corporations, sec. 1035, and authorities there cited.
The contention of the plaintiff in error, however, is that
although it be conceded that the judgment rendered against
Page 161 U. S. 331
the District in the first suit be conclusive, yet the judgment
in this action to recover over should be reversed for the following
reasons:
First, because, giving to the judgment first rendered all the
effect to which it is entitled, it did not conclude the question of
whether the gas company was negligent, and that, aside from the
effect of the judgment, there was no evidence tending to show
negligence, except the testimony of the witness Smith, which, if
admissible to aid in the ascertainment of what was the thing
adjudged by the judgment in the former action, yet was not
competent to establish the existence of negligence as a substantive
fact, apart from the probative force of the judgment itself;
second, that the judgment in the first suit was not conclusive as
to whether the broken brick (for which the gas company was clearly
not liable) had contributed to the accident, and therefore there
was error in this particular in the instruction given by the trial
court to the jury.
As to the first of these two contentions, the trial court
instructed the jury that although the judgment in the first action
was binding on the gas company, it was not conclusive as to the
negligence of that company, but that such negligence could be
inferred by the jury from the testimony of Smith, thus treating
that testimony as possessing intrinsic proving power. Both these
rulings were erroneous. The testimony of Smith taken in the first
suit was
res inter alios, and therefore incompetent
against the gas company as independent testimony. The fact that it
was admissible for the purpose of determining the scope of the
thing adjudged in the suit in which it was given did not justify
its being used for a distinct and illegal purpose. Error, however,
in this particular was in no sense prejudicial if the judgment in
the first action conclusively established the negligence of the gas
company. The liability of the District for the injury inflicted by
the defective gas box depended on whether it had been guilty of
negligence. But the neglect of the District to repair the gas box
being one of omission, as distinguished from the active doing of a
negligent act, this
Page 161 U. S. 332
negligence, in the absence of a statutory rule to the contrary,
could only have resulted from two conditions of fact -- failure to
repair after due notice of the defect, or proof of the existence of
the defect for a sufficient lapse of time so as to justify the
implication of knowledge and the resulting presumption of
negligence. The elementary rule is thus stated in Dillon on
Municipal Corporations (§ 1024), where a copious list of
adjudicated cases is found:
"Where the duty to keep its streets in safe condition rests upon
the corporation, it is liable for injuries caused by its neglect or
omission to keep the streets in repair, as well as for defects
occasioned by the
wrongful acts of others; but as the
basis of the action is negligence, notice to the corporation of
the defect which caused the injury, or of facts from which
notice thereof may reasonably be inferred, or proof of
circumstances from which it appears that the defect ought to have
been known and remedied by it, is essential to liability."
In the action against the District, there was no evidence
tending to show actual notice of the uncovered gas box. Indeed, the
only proof tending to show negligence was the testimony of the
witness Smith that the gas box had been observed by him to be
uncovered for a considerable time prior to the accident. The
verdict, therefore, against the District necessarily determined
that the defect in the gas box had existed for such a length of
time as to impute negligence to those whose duty it was to keep it
in repair. The finding of this fact in the first action was an
essential prerequisite to a judgment against the District. The
length of time required to imply knowledge and negligence on the
part of the District is also sufficient in law to imply such
knowledge and negligence on the part of the gas company. It
follows, therefore, that the judgment against the District
conclusively established a fact from which, as the duty to repair
rested on the gas company, its negligence results.
The proposition that the judgment, although conclusive, does not
determine the negligence of the gas company is a mere sophistry,
since, on the one hand, it admits the estoppel resulting from the
judgment, and, on the other, denies a fact
Page 161 U. S. 333
upon which the judgment depends and without which it could not
exist. It is true that in
Chicago City v. Robbins, ub.
supra, in speaking of the conclusiveness of the judgment
rendered against the city, the court said (p.
67 U. S.
423),
"Robbins is not, however, estopped from showing that he was
under no obligation to keep the street in a safe condition, and
that it was not through his fault the accident happened."
But in that case, the liability of the city rested on actual
notice of the defect in the street, and not on implied negligence
based on the continued existence of the defect which caused the
injury. Therefore, the essential fact on which the judgment against
the city rested did not, as a legal consequence, imply negligence
on the part of Robbins. Here, of course, a different state of fact
gives rise to a different legal result.
City of Rochester v.
Montgomery, 72 N.Y. 65;
Carpenter v. Pier, 30 Vt. 81,
87;
Village of Port Jervis v. First National Bank of Port
Jervis, 96 N.Y. 550.
The error which it is asserted the trial court committed on the
subject of the broken brick at the side of the gas box and its
alleged contribution to the accident may be conceded without
creating cause for reversal. There was no evidence tending, either
in the first action or in this to show actual notice to the
District of the defective brick, nor was there evidence tending to
show the existence of the defect for such length of time as to
impute knowledge and negligence to the District. One or the other
of these conditions being essential to establish negligence, and
thereby render the District liable for any accident to which the
broken brick may have contributed, it follows that in neither of
the actions was there any evidence which would have supported a
judgment against the District because of the defective brick.
Judgment affirmed.
