Opinion
September 26, 1928.
November 26, 1928.
Negligence — Railroads — Master and servant — Res judicata.
Where a driver of a truck is called as a witness for his employer in a suit brought by the employer against a railroad company for injuries to the truck, and a verdict is rendered in favor of the railroad company, the record of such suit is not res judicata against the driver in a subsequent suit brought by him against the railroad company for personal injuries arising out of the same accident.
Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.
Appeal, No. 89, March T., 1928, by defendant, from judgment of C. P. Allegheny Co., July T., 1926, No. 1015, on verdict for plaintiff, in case of Harry Woodburn v. Pennsylvania Railroad Company. Affirmed.
Trespass for personal injuries by the driver of a truck. Before REID, J.
The prior suit referred to in the opinion of the Supreme Court was an action by plaintiff's employer against the Pennsylvania Railroad Company for injuries to a truck caused by the same accident in which plaintiff, the driver of the truck, received his personal injuries.
Verdict and judgment for plaintiff for $7,500. Defendant appealed.
Error assigned was refusal of judgment for defendant n. o. v., quoting record.
W. B. McFall, Jr., with him Dalzell, Fisher Dalzell, for appellant.
Edward T. Smith and A. H. Rosenberg, for appellee, were not heard.
Argued September 26, 1928.
Plaintiff recovered a verdict in this action of trespass; defendant asked for judgment n. o. v., which was refused; judgment was entered on the verdict and defendant appealed.
Appellant did not ask the court below for a new trial, and makes no such request here; the only assignment of error complains of the refusal to enter judgment in favor of defendant notwithstanding the verdict for plaintiff. On this assignment appellant complains because the record of another case, between the present defendant and appellee's employer as plaintiff, was not accepted in evidence on the trial of the present cause. Appellant frankly states in his history of the case that the sole purpose of the offer was to show "that the issue in this [the present] case is res judicata" because of the judgment in the other case.
Though the same defendant figures in both cases, yet, since the record tendered as evidence involved an issue pending between a plaintiff other than the one now at bar, the mere fact that the injury to both plaintiffs occurred in the same accident and that the present plaintiff appeared as a witness for the other plaintiff, would not make the judgment for defendant in such other suit res judicata in this suit: Walker v. Phila., 195 Pa. 168, 173-4; Siegfried v. Boyd, 237 Pa. 55, 58-60.
The order appealed from is affirmed.