Opinion
September, 1917.
James McPhillips, for plaintiff.
Robert Frazier, for defendant.
A horse, belonging to one Florence McMahon, was killed on South Main street, in Mechanicville, N.Y., on September 27, 1913, by a current of electricity from plaintiff's telephone wire, which had been burned in two and had fallen, so that the ends reached the ground. The horse came in contact with it. At the time of the occurrence, defendant was maintaining a heavily charged electric light wire just above the telephone wire and this had sagged upon it. After the occurrence, Mrs. McMahon brought an action for negligence against plaintiff to recover for the loss of the horse. Plaintiff served notice upon defendant to defend, but defendant did not. The action resulted in a judgment against plaintiff for $355.60, which plaintiff paid, without taking an appeal. And plaintiff has now brought this action against defendant to recover the amount paid, with interest from November 13, 1915, claiming that the death of the horse was caused primarily by the negligence of defendant. On the other trial, it appeared without contradiction that this plaintiff knew that the electric light wire had sagged and that it did nothing to protect its wire. Upon that, the court charged the jury as follows: "Now you have heard the evidence of the witness for the defendant that the defendant company knew that these electric light wires did sag and that they did not protect their telephone wire from the electric light wires. In the exercise of reasonable prudence should they have done it? If you determine that they should, then find a verdict for the plaintiff in the sum of $225.00. If you determine that they were not called upon to do anything but took the chance of their wires being burned off and falling down in the street injuring somebody, why then find for defendant." So that plaintiff's liability was predicated upon its knowledge of the danger of the situation, coupled with its failure to exercise proper precautions to prevent accident. On this trial, plaintiff was permitted to show, under objection, that it did exercise some precautions to protect its wire from the electric light wire. Defendant moved for a nonsuit at the close of plaintiff's case and at the close of the evidence. Decision was reserved and, pending same, certain questions were submitted to the jury, which found that the accident was caused by the contact of the wires, that plaintiff exercised reasonable care, that defendant did not, that defendant's negligence was the prime and efficient cause of the accident, and that the damage was $373.38. Defendant then renewed its motion for a nonsuit and plaintiff moved for a general verdict.
The action is based upon the judgment in the McMahon case. That being so, plaintiff may not deny or contradict the facts, upon which it was recovered, with other facts, but must accept the findings there made upon the questions there litigated and determined. Fulton County Gas Electric Co. v. Hudson River Tel. Co., 200 N.Y. 287, 296; Larkin v. Terminal Warehouse Co., 161 A.D. 262. Judge Collin, writing in the former case, says: "The facts upon which the judgment in the Horning action was recovered are an essential and ineradicable part thereof, which the plaintiff may not deny, contradict, abandon or supplant with other facts. * * * If this defendant is by that judgment concluded on the question of Horning's damages and this plaintiff's liability, this plaintiff is concluded thereby as to the ground of its liability as found by the verdict of the jury and is not permitted to free itself from such verdict and the ground thereof or reopen the issues litigated and adjudicated in the action in which the judgment was rendered." In the McMahon action, the jury found that this plaintiff knew about the dangers of the situation and that it failed to do anything to guard against same. The questions relating to this defendant's negligence and to the liability as between these parties were not litigated. In this action, the findings are that this plaintiff exercised reasonable care, that this defendant did not, and that defendant's failure so to do was the primal cause of the accident. The finding as to defendant was based upon its knowledge of the situation and its failure to guard against same. While the question of the liability as between these parties may be litigated here, through evidence not produced in the other action, nevertheless, the facts found there may not be contradicted, but are controlling here. The parties, then, are in pari delicto. Larkin v. Terminal Warehouse Co., supra. So that the answers here to the questions relating to this plaintiff's care and to the primal and efficient cause of the accident must be set aside, on the law, and defendant's motion for a nonsuit must be granted.
Motion granted.