On the trial of this action the plaintiff herein introduced in evidence the judgment roll, the charge of the court to the jury, and the material testimony in the Forstner action. The judgment roll was conclusive evidence against these defendants that Forstner had been injured on this side track and the extent of his damages. (Mayor, etc., v. Brady, 151 N. Y. 611, 616; Carleton v. Lombard, Ayres & Co., 149 id. 137, 161; Scott v. Curtis, 195 id. 424; Western Union Telegraph Co. v. Gest, 183 App. Div. 548.) The charge of the court to the jury in that action was competent herein to show the precise issues therein decided. (Rowland v. Hobby, 26 App. Div. 522.) It clearly establishes that the judgment therein went against this plaintiff, the defendant therein, on the ground that Forstner was not furnished a safe place in which to work. Under that charge the verdict in favor of Forstner was necessarily predicated on the dangerous proximity of the leaning fence to the passing freight car. That element was necessarily found by the jury to exist and without it their verdict could not have been rendered.
The testimony in the Forstner case while establishing the *787negligence of the railroad company at the same time establishes the liability of these defendants to the railroad company. Such testimony shows that they constructed the fence on their own premises in close proximity to the spur track likewise constructed on their premises at their request and for the mutual benefit of themselves and the railroad company and that they permitted the fence to incline toward the track to such an extent that there was an unsafe clearance between fence and track. If the railroad company was negligent these defendants were equally negligent in the same particular. The testimony in the Forstner action thus produced herein was at least prima facie evidence against these defendants (Western Union Telegraph Co. v. Gest, 183 App. Div. 548, 554) and when both parties moved for a directed verdict a direction in favor of the plaintiff herein resolved in its favor all questions of fact and inferences properly deducible from such testimony.
The defendants herein contend that Forstner could not have maintained an action against them for their negligence because they owed him no duty and no contractual relation existed between them and him, and in support of that proposition cite the case of Sias v. Rochester Railway Co. (169 N. Y. 118). That proposition if otherwise applicable is not here involved. There was a contractual relation between the defendants and the railroad company by the terms of which contract these defendants assumed responsibility for personal injuries occurring on the track “ except such as may be due to the sole negligence of the railroad company.” It is clear that the negligence of the railroad company for which it has been held liable could not have existed except for the acts and conduct of these defendants in constructing and maintaining the fence in dangerous proximity to the spur track. The injury to Forstner was not due, therefore, to the “ sole negligence ” of the railroad company within the meaning of the contract but to such negligence co-operating with the acts of these defendants. They laid the foundation for such negligence. As was forcibly and tersely stated by Mr. Justice Hasbrouck in deciding this case at the Trial Term: “ The accident could not have happened, except the fence leaned.” For that these defendants were responsible. Fart of the *788inducement to the railroad company for the operation of the spur track on defendants’ premises was protection against such liability as that in question. The purpose of the indemnity clause in the contract was to afford that protection especially against acts of the defendants themselves for which they were primarily responsible.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.