The opinion of the court was delivered by
Redfield, Ch. J.The question here is, how far the town is precluded, by one recovery against the defendants, for damages sustained by their neglect, from all future recovery for damages sustained by reason of the same neglect. The neglect is one, but the damage is several, and may be successive, extending over considerable time. The omission of defendants was no cause of action against any one until some one was injured, and then not unless injured without their own fault. And it afforded no cause of action in favor of these plaintiffs against the defendants, until a final recovery against the plaintiffs; for until it was shown in some way that the damage was such as plaintiffs were legally bound to bear, there was no obligation upon defendants. And then the obligation upon the defendants seems to us one of indemnity chiefly, against the consequences of defendants’ neglect. It is the consequence which constitutes the cause of action, and the only cause of action. It is not the neglect, or the damage to individuals, which constitutes the cause of action, but the actual payment of damages, or the necessity of payment, fixed upon them, by final judgment.
And if damage happens to one person, and is paid by the town, or fixed upon them, this will not enable them to recover, for probable future damages, resulting from injuries to other persons, who may be expected to recover against the town. In the present case, it is not claimed, that the plaintiffs could have recovered the damage to the wife, until fixed with it, which was not the case, at the time the former suit was commenced. And it could not have been re*384covered in the former suit, without an amendment of the declaration.
For it is as much a distinct matter, as if the persons had been strangers to each other, and as much, I think, as if the persons had been injured at different times, by reason of the same neglect of defendants.
It is true, that it is necessary for the plaintiffs to make out the neglect of defendants, and that the injury happened in consequence, to prove the obligation of defendants to indemnify.
Here then comes the turning point of our inquiry. What is the extent of this obligation of the defendants ? Is it an obligation to indemnify against the act of negligence, and the damage resulting therefrom ? or is it merely to indemnify against the damages, and the several and successive damages, which may arise to the plaintiffs, within the scope of the obligation ?
In this view, each successive recovery against the town constitutes a perfect cause of action against the defendants, and is in no manner connected with any other recovery. And whether the injury was at the same time, in the same carriage, and of course under the same precise circumstances, can make no difference. It would be the same, if it occurred on different days, from the same specific neglect of defendants. And in such case, and in this, either injury constitutes, when the town is legally fixed with the burden, a distinct and complete and independent cause of action.— And the last injury may become the first cause of action. And in neither case can the plaintiff recover probable damages, beyond the specific damages already fixed upon them, as was held in Admr. of Whitney v. Clarendon, and in Hodsell v. Stallebrass, 39 E. C. Law R. 94. And to hold that all subsequent damages, resulting from the same act of neglect, are barred by one recovery, when such damages could not have been included in the former recovery, even by estimation, is certainly going beyond any former case, and equally beyond any just principle, applicable to the subject.
A distinction is made in the books, as to the right to bring successive actions, whether the loss of service of a child or apprentice is by reason of an injury, which is complete at once, and that of loss of service, by enticing away the apprentice. In the former case, the cause or action is complete when the injury is inflicted, although the damage is prospective; and in the latter, the continuance *385of the enticement and harboring of the apprentice is a fresh cause of action, as well as fresh damage. There is fresh injury and damage in one case, and in the other only fresh damage, resulting' from the original injury.
■But in the present ease, the damage is the only cause’of action, the obligation of indemnity being fixed, and the damage shown to have arisen within the obligation.
In those cases where there is either a repetition or continuance of the injury, a fresh cause of action arises at each fresh injury, as in the case of a nuisance, or the flowing of another’s land, or obstructing his lights, or rendering the air unwholesome, or harboring an apprentice. But in the other class of cases, where the injury is complete at once, and the damage being all prospective, is liable to vary from time to time, it must nevertheless all be recovered in one action.
But the present case is different- from either. The defendants .are bound to a certain degree of shill and diligence, which, if performed, saves all liability. But if not performed, it still imposes no liability, but may be saved upon another alternative, i. e. of indemnifying and saving the plaintiffs harmless from each and every loss they may sustain, by reason of such omission, so that a fresh cause and a perfect cause of action arises at each successive loss. And in the present case, the two are as really distinct as if the parties had been strangers to each other, and the injuries had occurred at different times, from the same act of negligence in defendants, as we before said.
Judgment affirmed.