sum.

Messrs. Wayne MacVeagh, George Harding and George J. Harding, for plaintiff in error:

sum of $6306, judgment was rendered for that termined in the former suit between the same parties. And we are to inquire, on this writ of error, whether the court below erred in holding that the judgment in the former suit concluded that question between the parties. The learned counsel for the defendant insists that it did not, and bases his contention solely upon the ground that the former judgment was not, by reason of the limited amount involved, subject to review by this court.

Where, under the Federal statutes, no right to a writ of error or appeal exists in a particular case, the plain intent of the law constituting this court a court of review of the merits of cases within its jurisdiction, denies to the conclusion of a lower Federal court the force of an estoppel in a subsequent case within the limits of this court's jurisdiction, where the question is distinctly raised in the court below. The strictness with which this court maintains the limits of its jurisdiction based upon the amount in controversy is well illustrated by those cases which hold that nothing collateral to the judgment or decree can be used to establish jurisdiction where the judgment or decree itself is below the statutory limit.

Troy v. Evans, 97 U. S. 1 (24: 941); Elgin v. Marshall, 106 U. S. 578, 581 (27: 249, 250); Opelika City v. Daniel, 109 U. S. 108 (27:873); New Jersey Zinc Co. v. Trotter, 108 U. S. 564 (27: 828); Bruce v. Manchester & K. R. Co. 117 U. S. 514 (29: 990); New England Mortg. Secur. Co. v. Gay, 145 U. S. 123 (36: 646).

But the same strictness of interpretation clearly requires, on the other hand, that, jurisdiction being established, if it be made effective to bring within the cognizance of the court all questions of fact and law properly raised in the court below, independent of technical rules of estoppel, the operation of which, however general in extent cannot be made to deprive litigants of substantive rights.

Messrs. Frank P. Prichard and John G. Johnson, for defendants in error:

A judgment of a court of competent jurisdiction is conclusive between the parties as to the issue decided.

Black, Judgm., § 500; Freem. Judgm., $ 247; Herman, Estoppel & Res Judicata,

48.

The fact that the amount in controversy is so small that the defeated party has no right of appeal does not make the judgment any the less conclusive when the same question arises in a subsequent litigation, though the amount there involved is sufficiently large to support an appeal.

Is it true that a defeated suitor in a court of general jurisdiction is at liberty, in a subse quent suit between himself and bis adversary, in the same, or in any other court, to relitigate a matter directly put in issue and actually determined in the first suit, upon its appearing that the judgment in the first suit, by reason of the small amount in dispute, could not be reviewed by a court of appellate jurisdiction? Does the principle of res judicata, in its application to the judgments of courts of general jurisdiction, depend, in any degree, upon the inquiry whether the law subjects such judg ments to re-examination by some other court? Upon principle and authority *these [257 questions must be answered in the negative. We have not been referred to, nor are we aware of, any adjudged case that would justify a different conclusion.

The object in establishing judicial tribunals is that controversies between parties, which may be the subject of litigation, shall be finally determined. The peace and order of society demand that matters distinctly put in issue and determined by a court of competent jurisdiction as to parties and subject-matter, shall not be retried between the same parties in any subsequent suit in any court. The exceptions to this rule that are recognized in cases of judgments obtained by fraud or collusion have no application to the present suit.

In Hopkins v. Lee, 19 U. S. 6 Wheat. 109, 113 [5: 218,219] it was held that a fact directly presented and determined by a court of competent jurisdiction cannot be contested again between the same parties in the same or any other court. "In this," the court said, "there is and ought to be no difference between a verdict and judgment in a court of common law and a decree of a court of equity. They both stand on the same footing and may be offered in evidence under the same limitations, and it would be difficult to assign a reason why it should be otherwise. The rule has found its way into every system of jurisprudence, not only from its obvious fitness and propriety, but because without it an end could never be put to litigation. It is, therefore, not confined in England or in this country to judgments of the same court or to the decisions of courts of concurrent jurisdiction, but extends to matters litigated before competent tribunals in foreign countries. reference to the proceedings at law, and in chancery, in the case now before us, the court is satisfied that the question which arose on The question, upon the merits, which the the trial of the action of covenant was predefendant's affidavit of defense presented, was cisely the same, if not exclusively so (although whether the girder guard rails manufactured that was not necessary) as the one which had and sold by it were covered by the Wharton already been directly decided by the court of patent and by the license granted by the agree-chancery." And in Smith v. Kernochen, 48 ment of November 24, 1885. But that precise U. S. 7 How. 198, 217 [12: 666, 674]: The question, it is admitted, was presented and de- case, therefore, falls within the general rule,

Griffin v. Long Island R. Co. 102 N. Y. 449; Elgin v. Marshall, 106 U. S. 578 (27: 249); Opelika City v. Daniel, 109 U. S. 108 (27: 873); Gibson v. Shufeldt, 122 U. S. 27 (30: 1083); New England Mortg. Secur. Co. v. Gay, 145 U. S. 123 (36: 646); Washington & G. R. Co. v. District of Columbia, 146 U. S. 227 (36: 951); United States v. Wanamaker, 147 U. S. 149 (37:118); Scotland County v. Hill, 112 U. S. 183 (28: 692).

Mr. Justice Harlan delivered the opinion of the court:

On a

that a judgment of a court of concurrent jurisdiction directly upon the point is a plea, as a bar, or as evidence between the same parties or 258] privies upon the same matters when *directly in question in another court." To the same effect are Pennington v. Gibson, 57 U. S. 16 How. 65, 77 [14: 847, 852]; Stockton_v. Ford, 59 U. S. 18 How. 418 [15: 395]; and Doe ▼ Ferris, 67 U. 8. 2 Black, 606, 609 [17: 317, 819].

The whole subject was carefully considered In Cromwell v. Sac County, 94 U. S. 351, 352 [24: 195,197], where it was said: "There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Thus, for example, a judgment rendered on a promissory note is conclusive as to the validity of the instrument and the amount due upon it. although it be subsequently alleged that perfect defenses actually existed, of which no proof was offered, such as forgery, want of consideration, or payment. If such defenses were not presented in the action, and established by competent evidence, the subsequent allegation of their existence is of no legal consequence. The judgment is as conclusive, so far as future proceedings at law are concerned, as though the defenses never existed."

the judgment, is conclusive as to the facts found in all subsequent controversies between the parties on the contract. Every defense requiring the negation of this fact is met and overthrown by that adjudication."

In Stout v. Lye, 103 U. S. 66, 71, [26: 428, 430] in which one of the questions was as to the conclusiveness of a judgment in a state court upon the same parties to a suit in the Federal court-the two suits involving the same subject matter, and the suit in the state court having been first commenced—this court, observing that the parties instituting the suit in the Federal court, being represented in the state suit, could not deprive the latter court of the jurisdiction it had acquired, said: "The two suits related to the same subject-matter, and were in fact pending at the same time in two courts of concurrent jurisdiction. The parties also were, in legal effect, the same, because in the state court the mortgagor represented all who, pending the suit, acquired any interest through him in the property about which the controversy arose. By electing to bring a separate suit the Stouts voluntarily took the risk of getting a decision in the cir cuit court before the state court settled the rights of the parties by a judgment in the suit which was pending there. Failing in this, they must submit to the same judgment that has already been rendered against their representative in the state court. That was a judg. ment on the merits of the identical matter now in question, and it concluded the 'parties and those in privity with them, not only as to every matter which was offered and *received [260 to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.' Cromwell v. Sac County, 94 U. S. 351, 352 [24: 195, 197]. It is true the mortgagor did not set up as a defence that the bank had no right to take the The doctrines of the latter case were applied mortgage, or that he was entitled to certain in Mason Lumber Co. v. Buchtel, 101 U. S. 638, credits because of payments of usurious inter639 [25: 1074], which case is like this in some est, but he was at liberty to do so. Not havrespects. That was an action for the recoving done so, he is now concluded as to all such ery of the last installments of money due on a contract for the purchase of timber lands, the plaintiff having in a previous action against the same defendant obtained a judgment for the first installment. In the first action the sole defense was that the defendant had been induced to make the contract of guaranty by false and fraudulent representations. The same defense was made in the second action, and an additional one was interposed to the effect that the representations made as to the quantity of timber, and which induced the ex259] ecution of *the contract, amounted to a warranty upon which defendant could sue for damages. Both grounds of defense relied on in the second action, were held to be concluded by the judgment in the prior action. In respect to the second ground it was said: "The finding of the referee, upon which the judg. ment [in the first action] was rendered-and this finding, like the verdict of a jury, constitutes an esssential part of the record of a case -shows that no representation as to the quan tity of timber on the land sold were made to the defendant by the plaintiff, or in his hearing, to induce the execution of the contract of guaranty. This finding, having gone into

defenses, and so are his privies."

In all of these cases, it will be observed, the question considered was as to the effect to be given by the court of original jurisdiction to the judgment in a previous case between the same parties or their representatives, and involving the same matters brought up in a subsequent suit. In no one of them is there a suggestion that the determination of that question by the court to which it was presented should be controlled by the inquiry whether the judgment in the first action could be reviewed upon appeal or writ of error.

The counsel for the plaintiff in error in support of his position, referred to the clause of the Constitution declaring that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish, and to the clause providing that the judicial power of the United States shall extend to all cases in law or equity mentioned in that instrument. But, except in the cases specially enumerated in the Constitution and of which this court may take cognizance, without an enabling Act of Congress, the distribution of the judicial power of

COMPANY, Piff. in Err.,

v.

DAVID GEORGE MCDONALD, ET AL.

(See S. C. Reporter's ed. 262-284.)

Railroad company, when liable for learing a slack pit unfenced-trespasser―liability to strangers-injury to infant-degree of caresudden emergencies-evidence of negligencewhen court may direct verdict.

the United States among the courts of the *THE UNION PACIFIC RAILWAY [262 United States is a matter entirely within the control of the legislative branch of the gov ernment. And it has never been supposed that Congress, when making this distribution, intended to change or modify the general rule, having its foundation in a wise public policy, and deeply imbedded in the jurisprudence of all civilized countries, that the final judgment of a court-at least, one of superior jurisdiction-competent under the law of its creation to deal with the parties and the subject matter, and having acquired jurisdiction of the par261] ties, *coucludes those parties and their privies, in respect to every matter put in issue by the pleadings and determined by such court. This rule, so essential to an orderly and effective administration of justice, would lose much of its value if it were held to be inapplicable to those judgments in the circuit court of the United States which, by reason of the limited amount involved, could not be reviewed by this court.

The inquiry as to the conclusiveness of a judgment in a prior suit between the same parties can only be whether the court rendering such judgment-whatever the nature of the question decided, or the value of the matter in dispute-had jurisdiction of the parties and the subject-matter, and whether the question, sought to be raised in the subsequent suit, was covered by the pleadings and actually determined in the former suit. The existence of non-existence of a right, in either party, to have the judgment, in the prior suit re exam. ined, upon appeal or writ of error, cannot, in case, control this inquiry. Nor can the possibility that a party may legitimately or properly divide his causes of action, so as to have the matter in dispute between him and his adversary adjudged in a suit that cannot, after judg ment, and by reason of the limited amount involved, be carried to a higher court, affect the application of the general rule. Whatever mischiefs or injustice may result from such a condition of things, must be remedied by legislation regulating the jurisdiction of the courts, and prescribing the rules of evidence applicable to judgments. Looking at the reasons upon which the rule rests, its operation cannot be restricted to those cases, which, after final judgment or decree, may be taken by appeal or writ of error to a court of appellate jurisdiction. We are of opinion that the question whether the rails manufactured by the Johnson

1.

2.

8.

4.

5.

Where a railroad company also operated a coal

mine within a few hundred feet of its depot, and deposited close by its track a large quantity of coal slack which kept continually burning under its surface, and the fire was concealed by a covering of ashes, and the company was required by statute to fence their slack piles as against cattle and horses, but omitted to do so, and the plaintiff, a lad about 12 years of age, becoming frightened at the threats of other boys ran along a narrow path bordering on and skirting the slack pit, and in attempting to pass some persons near the edge of the slack pit slipped and fell into the burning slack, breaking through the covering of ashes, from which he was rescued, severely burned and injured, having no previous knowledge of the burning slack, the railroad company was guilty of negligence in leaving unguarded the slack pit and the plaintif can recover of the company for such injuries.

Where a railroad company left its slack pit without a fence around it, or anything to give warning of its really dangerous condition, and knew or bad reason to believe that it was in a place where it would attract the interest or curiosity of passers-by, the plaintiff, a boy of tender years, cannot be regarded as a mere trespasser, for whose safety and protection while on the premises in question, the railroad company was under no duty or obligation whatever to make provision.

While a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to them for injuries arising from its negligence or from its tortious acts. A railroad company is liable for an injury received by an infant while upon its premises, from idle curiosity, or for purposes of amusement, if such injury was, under the circumstances, attributable to the negligence of the company.

The law discriminates between children and adults, the feeble and the strong, and only requires of each the exercise of that degree of care to be reasonably expected in view of his age and condition.

Company were covered by the Wharton pat-6. Persons in sudden emergencies, and called to ent, having been made and determined in the prior action between the same parties-which judgment remains in full force-could not be relitigated in this subsequent action.

There is no error in the judgment, and it is affirmed.

7.

act under peculiar circumstances, are not held to the exercise of the same degree of caution as in other cases.

The non-performance by the railroad company of the duty imposed by statute, of putting a

NOTE.-As to the degree of care required by infants to avoid injury, see note to Sioux City & P. R. Co. v. Stout, 21: 745.

As to care and precaution necessary in crossing a railroad track, see note to Continental Imp. Co. v. Stead, 24: 403.

As to trespassers or persons on track of railroads; duty of railroad company towards them, see note to Mitchell v. New York, L. E. & W. R. Co. 36: 1064. As to damages for personal injury from negligence, see note to Pennsylvania Co. v. Roy, 26: 141.

1 Fates for the Eastern District of Colo invitation, express or implied, but for their

U. S. 228 (28: 410); State v. Boston & M. R. | alleged to have been sustained by him in conse58 N. H. 408, 410. quence of the want of due care upon the part of the company in managing and controlling certain premises belonging to it, on which the plaintiff received such injuries.

Hydraulic Works Co. v. Orr, 83 Pa. 335; Crogan v. Schiele, 53 Conn. 186, 55 Am. Rep. 88. Slight facts will constitute an implied invi-dred feet of its depot at that village the comtation to come upon one's premises.

St. Louis, A. & T. H. R. Co. v. Huggins, 20 Ill. App. 639; Grand Trunk R. Co. v. Ives, 144 U. S. 408 (36: 485); Schilling v. Abernethy, 112 Pa. 437, 56 Am. Rep. 320; Black, Proof & Pleadings in Accident Cases, p. 97, § 79; Bus-neath. Except when there was rain, snow, or well, Personal Injuries, § 77.