Woodburn v. Pennsylvania R. R. Co.

Argued September 26, 1928. Plaintiff recovered a verdict in this action of trespass; defendant asked for judgment n. o. v., which was refused; judgment was entered on the verdict and defendant appealed.

Appellant did not ask the court below for a new trial, and makes no such request here; the only assignment of error complains of the refusal to enter judgment in favor of defendant notwithstanding the verdict for plaintiff. On this assignment appellant complains because the record of another case, between the present defendant and appellee's employer as plaintiff, was not accepted in evidence on the trial of the present cause. Appellant frankly states in his history of the case that the sole purpose of the offer was to show "that the issue in this [the present] case is res judicata" because of the judgment in the other case.

Though the same defendant figures in both cases, yet, since the record tendered as evidence involved an issue pending between a plaintiff other than the one now at bar, the mere fact that the injury to both plaintiffs occurred in the same accident and that the present plaintiff appeared as a witness for the other plaintiff, would not make the judgment for defendant in such other suit res judicata in this suit: Walker v. Phila., 195 Pa. 168, 173-4; Siegfried v. Boyd,237 Pa. 55, 58-60.

The order appealed from is affirmed.