1. The matters in issue in the Rolfes' suit (Rolfe v. Railroad,69 N.H. 476) were (1) the liability of Sargent for the loss occasioned the Rolfes by the destruction of their storehouse, through his operation of a portion of the railroad, and (2) the Rolfes' freedom from fault contributing to that loss. In defence of the action, Sargent could have shown (1) that the Rolfes were guilty of contributory negligence, or (2) that he himself was free from fault, or (3) that the railroad was guilty of actual negligence which was the sole cause of the loss. It would not have been a defence for him to have shown that actual negligence on the part of the railroad concurred with his negligence, and the question was not in fact litigated; and inasmuch as the, duty which Sargent assumed of heating the potato car "was a part of the actual operation of the road," and could "not be separated from it, so far as the rights of third persons . . . [were] concerned, by any contract between the railroad and the shipper" (Ib. 477), it would not have been a defence for the railroad to have shown that Sargent's negligence was the sole cause of the loss, for they, as a matter of law, were jointly liable with him for his negligence, though themselves guilty of no actual negligence.
Upon all the issues which were in fact litigated, and which Sargent and the railroad could have litigated in defence of the action but did not, they are concluded by the judgment. MacDonald v. Railway, 71 N.H. 448, 457; Metcalf v. Gilmore, 63 N.H. 174, 189. Hence, as respects the destruction of the storehouse, the only question which was open for the parties to litigate, when this case was sent back for trial in the superior court, was whether the plaintiffs were in fact guilty of negligence concurring with that of Sargent to produce the loss.
2. The Rolfes' suit and the first count in this action relate to the same subject-matter — the loss occasioned the Rolfes by the destruction of the storehouse. The only difference between that suit and the first count is that the latter presents the additional issue of the ultimate liability for that loss, as between the parties to this suit.
After the action was sent back to the superior court, the declaration was amended by filing an additional count. The subject-matter of this count is entirely different from that of the other; it is the loss occasioned the railroad by the destruction of the two cars — property in which they had a special interest as bailees. Woodman v. Nottingham, 49 N.H. 387, 393. The issues here presented are (1) the liability of Sargent for the loss occasioned *Page 462 the plaintiffs by the destruction of the cars, and (2) the plaintiffs' freedom from fault contributing thereto. These issues were not passed upon in the prior action. While certain evidentiary facts bearing upon these issues may be the same as those contested in the prior action, they were not themselves in issue (although controverted), within the meaning of the rule as applied in King v. Chase, 15 N.H. 9, and the numerous cases in this state in which the doctrine there announced has been approved and followed. Hearn v. Railroad, 67 N.H. 320; Metcalf v. Gilmore; 63 N.H. 174; Littleton v. Richardson, 34 N.H. 179. See, also, Ray Walker's Citations 420. Sargent's equipment of the interior of the potato car, his management of the stove, and the communication of the fire from the stove to that car and thence to the storehouse, were not issues upon which the Rolfes proceeded, but were evidentiary facts tending to establish the liability of the defendant for the loss which the Rolfes sustained, and fall within the rule that "facts offered in evidence to establish the matter which is in issue, are not themselves in issue within the meaning of the rule, although they may be controverted on the trial." King v. Chase, supra. They stand the same as the mortgage in the above case, and were not issues upon which the action proceeded.
It follows, therefore, that the parties were not concluded by the judgment in the Rolfes' suit upon either of the above issues, and that the jury should have been instructed that the judgment was not even evidence to be considered upon the question of Sargent's liability for the loss of the cars.
3. The plaintiffs' motion for a verdict, as respects the storehouse, presents the question whether there was competent evidence from which the jury might properly find that the plaintiffs were guilty of actual negligence which contributed to its destruction. Paphro D. Pike Co. v. Baty, 69 N.H. 453, 458. Counsel for the defendant contend that the plaintiffs were actually negligent in shifting the potato car in the yard and placing it near the storehouse, without first ascertaining that the defendant had negligently equipped it with a defective stove and was negligently managing the fire; and that although the plaintiffs did not know of his negligent conduct, they might have learned of it by the exercise of ordinary care.
If, as respects the Rolfes, it might be found from the evidence that the plaintiffs were negligent in not examining the interior of the car and ascertaining that the defendant was not performing his duty, still it could not be so found as respects the defendant; for when the defendant assumed the control of the interior of the car under the shipping contract, and undertook to equip and heat it, he impliedly agreed with the plaintiffs that he would perform this *Page 463 duty with reasonable care (Boston Maine R. R. v. Brackett, 71 N.H. 494,498), which means that he would use a suitable stove, manage it in a proper manner, and set it up so that it would withstand the ordinary movements of the car incident to its transportation in a freight train. And the plaintiffs had the right to rely upon his agreement and to understand that he would perform this duty.
Negligence is not a thing, but a relation. "The word `negligence' implies a duty to use due diligence, and such a duty may be owed to one person and not to another." Mowbray v. Merryweather, [1895] 2 Q. B. Div. 640, 647. "If there be no duty, the question of negligence is not reached; for negligence can in law only be predicated upon a failure to use the degree of care required of one by law in the discharge of a duty imposed thereby." Dobbins v. Railway, 91 Tex. 60, 62. In order, therefore, to establish that the plaintiffs' conduct was negligent, so as to prevent recovery in this action, it was essential that it should be made to appear that they violated some duty which they owed to the defendant. But the contract discloses the absence of a duty on the part of the plaintiffs to this defendant to investigate his management of the interior of the car, and consequently their omission to do so was not negligence and does not preclude them from covering from him what they paid the Rolfes. "When the party who was in fault as to the person injured is without fault as to the party whose actual negligence is the cause of the injury, . . . recovery over can then be had." Boston Maine R. R. v. Brackett, supra. "In such a case the parties are not in pari delicto as to each other, though as to third persons either may be held liable." Gray v. Company, 114 Mass. 149,154.
A different situation would have been presented if the plaintiffs had known of the defendant's negligent conduct, or if there was evidence from which it could have been found that they owed him a duty to know of it. But there was no evidence that the plaintiffs knew, or from which it could have been found that they owed him the duty of ascertaining, that he was negligently heating the car; or that they knew or ought to have known that the car could not be safely heated, if equipped with a suitable stove and managed with reasonable prudence. The location of the potato car near the storehouse and the second car had nothing to do with its own destruction; and in the absence of evidence that the plaintiffs knew, or as respects the defendant ought to have known, that he would negligently maintain a fire in the stove, they violated no duty which they owed to him in leaving the potato car near these properties. The evidence as to the shifting of the potato car was that the method used was such as is commonly employed; and *Page 464 this being so, it was the duty of the defendant to exercise such a degree of care in heating the car as would permit a shift of this kind to be safely made. Had the evidence tended to show that the shift was made in an unusual manner, and with knowledge that the car contained a stove with a fire in it, then there would have been evidence that the plaintiffs violated a duty which they owed to the defendant; but as there was none, it could not be found that the plaintiffs were negligent in this particular.
Again, the defendant is estopped by the judgment in the Rolfes' suit from showing that he exercised due care in heating the car, and that the plaintiffs were guilty of actual negligence which was the sole cause of the destruction of the storehouse; for that issue was found against him in that suit.
The question here presented seems to have first arisen in England in 1895, in the case of Mowbray v. Merryweather, [1895] 1 Q. B. Div. 857, which was in the same year taken to the court of appeals (2 Q. B. Div. 640). The plaintiffs in that case were two stevedores, and the defendant was the owner of a steamship. The plaintiffs undertook to discharge a cargo of deals from the ship, and the defendant promised to provide all necessary and proper appliances reasonably fit for the purpose of discharging the cargo. He supplied a chain so defective that it broke while in use, and a workman of the plaintiffs was injured. The workman sued the plaintiffs, basing his action upon the defective condition of the chain — a defective condition which he alleged might have been discovered by the plaintiffs, by the exercise of reasonable care. The plaintiffs paid the workman 125 and brought their action to recover that sum from the defendant. It was admitted that the sum paid was reasonable, and that the defendant had broken his implied warranty that the chain should be reasonably fit for the purpose for which it was supplied; and the plaintiffs admitted that they might, by the exercise of reasonable care, have discovered the defect in the chain. It was contended by the defendant that the damage to the workman was caused by the plaintiffs' own want of care, and could not be imputed to the defendant as the natural consequence of the breach of warranty. On the other hand, the plaintiffs contended that they had a right to rely upon the defendant's warranty; and that as between him and them the cause of action was complete, and the negligence of which they had been guilty, — the failure to carefully examine and test the chain, — was really due to the reliance they placed on the defendant's warranty. It was held in the lower court that "the breach of warranty upon which the plaintiffs relied, and as far as the defendant is concerned had the right to rely, remains, and is the efficient cause of the subsequent mischief," and *Page 465 that the injury was "a natural consequence of the breach of warranty." Upon appeal, the decision of the lower court was affirmed. Lord Esher, M. R., among other things said: "The plaintiffs owed no duty to the defendant to examine the chain before allowing it to be used by their workman. The only duty which they owed in that respect was to the workman." Rigby, L. J., said: "There was no want of due diligence as between the plaintiffs and the defendant, because . . . the warranty means that, as between him and the plaintiffs, they may rely on the warranty."
In Boston Woven Hose Co. v. Kendall, 178 Mass. 232, the defendants undertook to furnish the plaintiffs with a boiler that would withstand a pressure of one hundred pounds. It failed to withstand a less pressure, because of a defect which the plaintiffs could have discovered by investigation in the exercise of ordinary care and caused damage to the plaintiffs' servants. Holmes, C. J., said "The fact that the reliance [upon the defendants' undertaking] was not justified as toward the men does not do away with the fact that the defendants invited it with notice of what might be the consequences if it should be misplaced, and there is no policy of the law opposed to their being held to make their representations good."
The principle involved in these cases is not different from that applied where an agent, acting in good faith and in obedience to his principal's orders, does an act which, if the principal had authority to authorize it, would have been lawful; but not possessing authority, the agent is rendered liable in damages for a tort. In these cases it is held that "there is an implied obligation the part of the principal to indemnify an innocent agent for obeying his orders," and that he can recover indemnity from his principal. Gower v. Emery, 18 Me. 79; Lowell v. Railroad, 23 Pick. 24, 33, 34; Howe v. Railroad, 37 N.Y. 297; Moore v. Appleton, 26 Ala. 633, 637; Vandiver v. Pollak, 107 Ala. 547; Sto. Ag., ss. 339, 340; 7 Am. Eng. Enc. Law (2d ed.) 365.
Our conclusion is, that as the plaintiffs violated no duty which they owed to the defendant in moving and placing the car where they did, without examining to see how he was heating the car, it could not be found on the evidence that they were not in the exercise of ordinary care, and the verdict as to the first count must be set aside.
In the previous trial (Boston Maine R. R. v. Sargent, 70 N.H. 299), the only evidence submitted was the judgment in the Rolfes' suit and an admission of the defendant's counsel tending to show that the plaintiffs were in the exercise of care; and because of the latter piece of evidence, the verdict ordered for the defendant was set aside. But in the present trial, evidence fully *Page 466 disclosing the plaintiffs' conduct in the management of the cars was presented; and as we have held that it would not support the verdict of the jury in favor of the defendant, a verdict should have been directed for the plaintiffs. State v. Harrington, 69 N.H. 496.
With reference to the second count, the instructions to the jury upon the question of the plaintiffs' exercise of care were general — that the railroad could not recover if its negligence contributed to the destruction of the cars. An exception was taken to this instruction, and a charge requested to the effect that the railroad could not be found to be negligent for not investigating the interior of the potato car before leaving the car where it did, unless the jury should find that the railroad or its employees knew the stove or the fire in it was unsafe, or that there was something in the appearance of the car which indicated that an unsafe fire was being maintained in it. This instruction should have been given for the reasons above stated, and the verdict as to this count is also set aside.
4. The burden of proof upon all the issues raised by both counts was upon the plaintiffs. The fact that the defendant had the exclusive control of the interior of the potato car did not alter the situation in this respect. Hart v. Lockwood, 66 N.H. 541, 542.
In view of the conclusions reached, it is unnecessary to consider the other questions in the case.
Verdict set aside as to the first count, and judgment for the plaintiffs: new trial granted upon the second count.
PARSONS, C. J., and WALKER, J, did not sit: the others concurred.