I think the judgment of the court below should have been affirmed. On the former trial of the case the defendant pleaded assumption of risk as a defense to the suit, in addition to the general issue. In this notice under the general issue under the assumption of risk, it was contended that the cinders and clinkers which caused the death of the decedent had been placed upon and along the track as ballast prior to November 3d of the year of the injury, had been so placed along the track for a long period of time, and that the deceased had often been over the track in operating the engine and trains, and was thoroughly familiar with the conditions, and *Page 474 the danger, if any, existed on said tracks during all this period of time. It produced testimony, on its part, to sustain its contention of the assumption of risk; while the plaintiff produced contradictory evidence upon the facts alleged by the railroad company as a plea of the assumption of risk. The issue was submitted to the jury on conflicting evidence in reference to the condition of the track prior to November 3d of the year in which the death of the decedent occurred, and the jury found against the defendant upon such issues of fact, and the judgment of liability was affirmed by this court. The finding by the jury, and the affirmance by the court, is an adjudication that the facts in regard to the condition of the tracks prior to November 3d, as claimed by the railroad company, did not exist. If the condition contended for by the railroad company existed, then clearly there would have been an assumption of the risk, and consequently no liability, as the assumption of risk is a complete defense under the Federal Employers' Liability Act (45 U.S.C.A., sections 51-59).
When the case was remanded for trial upon the question of damages alone, the railroad company then filed a notice under the general issue of contributory negligence, and sought to prove the same contentions involved in the plea of assumption of risk. And this constitutes the first assignment of error; that the trial court erroneously limited the scope of the evidence under this plea of contributory negligence. The court below admitted evidence of contributory negligence, but refused to permit the inquiry to go behind November 3d of the year of the decedent's death, on the theory that the facts in reference thereto had already been adjudicated, and were res adjudicata.
In my view this ruling was correct. The parties to the suit were each bound by the findings of fact necessarily involved in the verdict and the judgment of the court. There could not be, on the same conditions, facts to negative *Page 475 assumption of risk on one trial, and a contrary finding by the jury on a second trial, on the same testimony. To permit this would be to destroy all certainty in verdicts and judgments. The authorities, both federal and in this state, sustain this view.
In 34 C.J., page 854, section 1266, it is said: "All defenses to plaintiff's cause of action which were set up and adjudicated are concluded by a judgment for plaintiff, so that they cannot thereafter be urged as against further proceedings upon the same cause of action, or upon the judgment itself, or in further litigation between the same parties upon the same subject matter. Under this rule matters alleged by way of defense to an action, and fully negatived by the judgment therein, cannot afterward be made the basis of a new action by the former defendant against the former plaintiff, even though in the subsequent action the complaint amplifies the former defense by stating the evidence to prove it. But the rule does not apply to defenses which were not within the scope of the issue litigated in the former action, and which therefore were not considered or decided therein, nor to defenses which were expressly reserved by the court, or which, after having been pleaded, were withdrawn by defendant before judgment or were excluded by the court."
At page 856 of 34 C.J., it is said: "It is a general rule that a valid judgment for plaintiff is conclusive not only as to defenses which were set up and adjudicated, but also as to those which might have been raised; so that defendant can neither set up such defenses in a second action or in further proceedings in the same action, nor can such defenses be used by the former defendant as the basis of a subsequent action against the former plaintiff."
See, also, 8 R.C.L. 962, secs. 438, 446, 451; Pearce v. Rice,142 U.S. 28, 12 S.Ct. 130, 35 L.Ed. 925; Werlein v. New Orleans,177 U.S. 390, 20 S.Ct. 682, 44 L.Ed. 817; Fayerweather v. Ritch,195 U.S. 276, 25 S.Ct. 58, *Page 476 49 L.Ed. 193; 34 C.J. 817, secs. 1235 and 1236; 34 C.J. 902, sec. 1312; Board of Com'rs of Santa Fe County v. New Mexico,215 U.S. 296, 30 S.Ct. 111, 54 L.Ed. 202; Gila Bend Reservoir Irr. Co. v. Gila Water Co., 205 U.S. 279, 27 S.Ct. 495, 51 L.Ed. 801; Jones v. Merrill, 69 Miss. 747, 11 So. 23; Mosby v. Wall,23 Miss. 81, 55 Am. Dec. 71; Hart v. Livermore Foundry Machine Co., 72 Miss. 809, 17 So. 769; Oklahoma v. Texas, 256 U.S. 70, 41 S.Ct. 420, 422, 65 L.Ed. 831; Postal Telegraph Cable Co. v. Newport, 247 U.S. 464, 38 S.Ct. 566, 62 L.Ed. 1215; Harvison v. Turner, 116 Miss. 550, 77 So. 528; Johnson Steel Street-Rail Co. v. William Wharton, Jr., Co., 152 U.S. 252, 14 S.Ct. 608, 38 L.Ed. 429; Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195; National Life Acc. Ins. Co. v. Prather, 172 Miss. 567,161 So. 117.
In Oklahoma v. Texas, supra, the court said: "The general principle, applied in numerous decisions of this court, and definitely accepted in Southern Pacific R. Co. v. United States,168 U.S. 1, 48, 49, 18 S.Ct. 18, 42 L.Ed. 355 [376, 377], is, that a question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense in a suit or action between parties sui juris is conclusively settled by the final judgment or decree therein so that it cannot be further litigated in a subsequent suit between the same parties or their privies whether the second suit be for the same or a different cause of action. As was declared by Mr. Justice HARLAN, speaking for the court in the case cited, 168 U.S. 1, page 49, 18 S.Ct. 18, 27, 42 L.Ed. 355: `This general rule is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for, the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if, as between parties and their *Page 477 privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters properly put in issue and actually determined by them.'"
In Johnson Steel Street-Rail Co. v. William Wharton, Jr., Co., supra, 152 U.S. 252, 14 S.Ct. 608, 610, 38 L.Ed. 429, on page 433, the court, speaking through Justice HARLAN, said: "The whole subject was carefully considered in Cromwell v. Sac County,94 U.S. 351, 352 [24 L.Ed. 195-197], where it was said: `There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Thus, for example, a judgment rendered upon a promissory note is conclusive as to the validity of the instrument and the amount due upon it, although it be subsequently alleged that perfect defenses actually existed, of which no proof was offered, such as forgery, want of consideration, or payment. If such defenses were not presented in the action, and established by competent evidence, the subsequent allegation of their existence is of no legal consequence. The judgment is as conclusive, so far as future proceedings at law are concerned, as though the defenses never existed.'"
There is also a case note in 38 L.Ed. beginning at page 429, in which many authorities are set forth. In Gila Bend Reservoir Irr. Co. v. Gila Water Co., supra, 205 U.S. 279, 27 S.Ct. 495, 497, 51 L.Ed. 801, at page 803, the court said: "It is now contended that, inasmuch as *Page 478 the question is one of jurisdiction, neither the omission to call attention to the matter in the prior litigation nor the misrecital of fact operates to render the decree in that case res judicata upon the question, but leaves the matter open for present inquiry. Counsel are mistaken. In that litigation the present appellant was the defendant. The property was in the possession of the court, even if held under a prior receivership. The decree directed its sale. It was sold. The sale was confirmed, the deed made, and the property delivered to the purchaser. The appellant at least cannot now question the jurisdiction of the court in that suit, or the title which it conveyed to the purchaser at the sale. A failure to make a defense by a party who is in court is, generally speaking, equivalent to making a defense and having it overruled.
In Southern Pac. R. Co. v. United States, 168 U.S. 1, 18 S.Ct. 18, 27, 42 L.Ed. 355, it was said in the headnotes: "A right, question, or fact distinctly put in issue, and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is for a different cause of action," a right, question or fact, once so determined, will be taken as conclusively established so long as the judgment of the first suit remains unmodified.
Many other authorities could be cited and quoted from, which in my opinion clearly show that when a matter of fact necessarily involved in a previous litigation has been adjudicated, those facts stand established, and cannot thereafter be disputed by the parties to the suit, and those in privity to them; but such facts may be introduced by the party in whose favor they have been established by judgment, and the opposite party is estopped from thereafter challenging their truth.
It is true that the question of damages was sent back to the court below to be tried over, and all facts bearing on that question which are not judicially established in *Page 479 a prior decision are subject to proof by either party. But the judgment established facts which remain facts, and such facts cannot be disputed by the other parties to the suit against whom they are established. It would be absurd to say that certain evidence is true in one aspect of the case, and that the same testimony is untrue in another aspect of it. Testimony cannot at the same time be both true and false. When its truth is established in a judicial proceeding, the party against whom it is established is forever bound in that suit, or in any other suit where they come in issue between the same parties to the suit in which they were previously established.
I agree with the views expressed in Judge ANDERSON'S opinion, that the plaintiff was not limited in recovery to the earnings of the decedent as an employee of the railroad. His life having been taken while in the employ of the railroad, through its negligence, the plaintiffs were entitled to recover the pecuniary losses sustained by them by reason of his wrongful death, and the elements of recovery for his life are not limited to that service.
On the trial the plaintiff offered evidence showing the amounts of the pecuniary benefits received from the decedent by his wife and children for several years prior to his death, and also evidence of income received from the operation of the various activities in which the deceased was engaged; all of which was introduced for the purpose of establishing, or tending to establish, the ability of the deceased to have continued in the future the pecuniary benefits which he had been accustomed to bestow upon his family.
In this case the death of decedent was instantaneous, and his wife and children were limited to the pecuniary benefits which they had been accustomed to receive, and which he would probably have continued to bestow had he continued to live. In Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann. Cas. 1914C, 176, it was held that the liability to certain relatives *Page 480 dependent upon the decedent, which is imposed by the Federal Employers' Liability Act of April 22, 1908, on an interstate railway carrier negligently causing the death of an employee while engaged in interstate commerce, is not limited to cases where death was instantaneous; the right of action thus created being independent of any cause of action which the decedent had, and including no damages which he might have recovered for his injury if he had survived. But the financial benefits which the wife and children might reasonably have expected in a pecuniary way is the measure of damages in an action brought against an interstate railroad carrier under the Federal Employers' Liability Act of April 22, 1908, for the benefit of a widow of an employee killed while engaged in interstate commerce.
In arriving at and determining the pecuniary benefits to which the widow and children are entitled, the occupation, capacity for work, and business enterprise in which he is engaged, are to be considered, not as a measure of damages within themselves, but as tending to show, or to disprove, the ability of the deceased, had he lived, to continue the pecuniary benefits which he was in the habit of bestowing. It was pertinent to determine what his earnings were, and it was legally and logically pertinent, also, to show what the necessary or proper expenses of conducting such business was, to aid the jury in arriving at a correct conclusion. In the case of Louisville, E. St. L.R. Co. v. Clarke, 152 U.S. 230, 14 S.Ct. 579, 582, 38 L.Ed. 422, it is said: "It is assigned for error that the court below permitted the plaintiff, against the objection of the defendant, to testify as to the income of the deceased previous to his death. It is conceded by counsel that it was competent to have shown the testator's ability and capacity for labor, as well as his skill in his calling. But it is insisted that the evidence as to his income for a particular period was not competent. We are of the opinion that the evidence to which *Page 481 the defendant objected was properly admitted. It tended, in connection with other evidence, to show the extent of the loss sustained by the widow and children on account of the death of the husband and father. The age of the deceased, his probable expectancy of life, his occupation, his ability to labor, and his accustomed earnings were all proper elements of the inquiry as to the compensation proper to be awarded on account of his death. Wade v. Le Roy, 20 How. [61 U.S.] 34, [15 L.Ed. 813]; Nebraska City v. Campbell, 2 Black [67 U.S.] 590 [17 L.Ed. 271]; District of Columbia v. Woodbury, 136 U.S. 450, 10 S.Ct. 990 [34 L.Ed. 472]; Texas P.R. Co. v. Volk, 151 U.S. 73, 14 S.Ct. 239 [38 L.Ed. 78]; Board of Com'rs of Howard County v. Legg,110 Ind. 479, 11 N.E. 612; Hudson v. Houser, 123 Ind. 309, 24 N.E. 243; Collins v. Davidson [C.C.], 19 F. 83; Hall v. Galveston, H. S.A.R. Co. [C.C.], 39 F. 18; Serensen v. Northern Pac. R. Co. [C.C.], 45 F. 407."
It is difficult to see how the earning capacity of a decedent, had he lived, could be established otherwise than by showing what his income from various sources amounted to. These are not the measure of damages, and the jury were so instructed by the trial court; but they were elements from which the jury, in considering them with other evidence, might find what pecuniary benefits the plaintiffs would likely have continued to receive had the decedent lived. The instructions in the case, in my opinion, properly submitted the law to the jury; and when taken all together, and considered as one announcement of the law, in my judgment properly propounded it. The jury were distinctly advised as to the elements of recovery for which they were authorized to allow compensation, and the instructions as a whole were a safe and accurate guide to them in arriving at the proper legal conclusions. The instructions are too numerous and lengthy to be set out in an opinion, but, as stated, they announce correctly the law applicable to the evidence *Page 482 in the case, and I find no error that would warrant the court in reversing the judgment.