In this case, as in all similar cases, the plaintiffs must show that the injuries complained of were not caused by their own negligence, but were caused by that of the defendant. They must prove that by the exercise of ordinary care they could not, and the defendant could, have prevented the accident. The sole effect of the judgment in the Rolfes' suit "is to relieve the parties from the burden of proving or disproving the facts therein litigated or determined. Upon those facts both parties are concluded by the judgment." Gregg v. Belting Co., 69 N.H. 247, 249. It was therein determined (1) that the Rolfes were without fault, (2) that Sargent's negligence was a contributing cause of the injury to their property, and (3) that they were entitled to the damages assessed, as a compensation for their loss. But whether the railroad by ordinary care could have avoided the injury, was not litigated or determined, and the judgment is not evidence upon that issue in this suit. Gregg v. Belting Co., supra.
In the Rolfes' suit, it was immaterial whether the railroad were negligent or not. The heating of the car, which "was a part of the operation of the road," was entrusted by the railroad to Sargent, and in the performance of the duty Sargent's act was, as to the Rolfes, the act of the railroad, for which it was responsible. Rolfe v. Railroad, 69 N.H. 476. The railroad would not have been liable if Sargent had acted with due care; but Sargent's failure to so act rendered the railroad liable, with him, as a matter of law. It was therefore unnecessary in that suit to determine whether the railroad itself in fact exercised due care to prevent *Page 307 the injury. The counsel for the Rolfes, in his argument to the jury, made no claim that the railroad was negligent in fact. Sargent's counsel stated that, if the railroad were to be found negligent, it would be only as an inference of law from the negligence of Sargent. The presiding justice instructed the jury that they were not called upon to determine whether the railroad was in the exercise of ordinary care, and repeatedly stated to them that, if the railroad were to be found negligent, it would only be through an inference of law from a finding that Sargent was negligent. It is certain that the question of fact as to the railroad's negligence was not submitted to the jury. But the plaintiffs say that the presiding justice, in effect, directed a verdict in their favor on this issue, upon the ground that there was no evidence from which the jury could properly find that they were not in the exercise of ordinary care. In the closing words of his charge he said: "Something has been said in the opening and in the evidence upon the question whether the defendant railroad exercised due care in the management of their car while in the yard at Penacook, — with reference to the action of the yardmaster and station agent in shifting the car about. This question will not trouble you. There is no evidence in the case upon which you will be justified in finding the defendant railroad responsible upon this ground." It is evident from this instruction, in connection with others, that the presiding justice concluded it was sufficient for the purposes of the case to determine whether or not Sargent was negligent, and so was unnecessary to determine the question of fact whether the railroad was negligent.
It not having been determined in the former action that the railroad by ordinary care could not have avoided the injury to the Rolfes' property, the plaintiffs were bound to prove it in this case. Portions of the argument of Sargent's counsel in the former trial were competent evidence against Sargent upon the issue whether the plaintiffs exercised due care. Among other things, the counsel stated that he did not know why, under the circumstances, the railroad was brought into the case; that they had no interest in the case, practically speaking; and that, if there had been any carelessness, it was simply the carelessness of Sargent. He also said that, if the railroad is held responsible in this suit, "it simply turns around and calls for Sargent, and if he has got money enough he must respond." All this tended to prove an admission by Sargent that the cause of the injury to the Rolfes' property was in no part due to the fault of the railroad. Holderness v. Baker, 44 N.H. 414, 418; Lewis v. Sumner, 13 Met. 269, 273; Lord v. Bigelow, 124 Mass. 185; 1 Gr. Ev., s. 186.
The plaintiffs' motion that a verdict be directed in their favor *Page 308 was properly denied, and the exception is overruled. The defendant's motion that a verdict be directed in his favor should have been denied, and the exception is sustained.
Verdict set aside.
CHASE and PARSONS, JJ., did not sit: the others concurred.