sidewalk to afford means for turning on or off the
gas from a house, when it has entire control of the
box to the exclusion of the property owner, al-
though the latter is required to pay for the gas
box and connection.

2. A municipality when it has been condemned to
pay damages occasioned by a defective gas box
in a sidewalk, which it was the duty of a gas com-
pany to supervise and repair, has a cause of ac-
tion against the gas company therefor.
8. Testimony given in an action is admissible after
the death of the witness, in a subsequent action in
which the judgment in the former is proved as a
basis of recovery, in order to show the subject
matter of the controversy.

4. A judgment against a defendant who has a
right of action to recover over against a third
party is conclusive upon the latter, provided he
has notice and full opportunity to defend.

[No. 40.]

District of Columbia to recover damages for an injury to her person, alleged to have been suffered from stepping into a certain "deep and dangerous hole" in the sidewalk of one of declaration contained all the essential averthe streets of the city of Washington. The ments necessary to fix liability on the corpora tion. Prior to the bringing of the suit, when Mrs. Parker first made demand against the District, the latter notified the Washington Gaslight Company, spoken of hereafter as the Gas Company, that it would be expected to indemnify the District for any amount which it might be compelled to pay to Mrs. Parker, and when the suit was commenced the Gas Company was also informed, and opportunity was afforded that company to defend. [317 The proffer was not availed of although on the trial of the cause, which resulted in a verdict

Argued October 16, 17, 1895. Decided March and judgment against the District for $5,000,

2, 1896.

mewujudgment N ERROR to the Supreme Court of the of that court affirming the judgment of the Special Term of that court in favor of the plaintiff, the District of Columbia, against the Washington Gaslight Company, defendant, for the amount of a judgment recovered by Marietta M. Parker against the District for damages for personal injury. Affirmed. See same case below, 20 D. C. 39.

officers of the Gas Company testified, and the
counsel of that company was present during a
taking part
portion of the trial, but purposely_abstained

now here was brought by the District of Co-
lumbia against the Gas Company to recover
over the amount of the judgment obtained by
Mrs. Parker against the District, and which
had been paid by it. The cause of action re-
lied on to sustain this recovery was briefly as
follows: That "the deep and dangerous hole"
averred by Mrs. Parker to have existed, and
which she alleged to have been the cause of
her injury, and upon which her recovery was

Statement by Mr. Justice White:
In July, 1879, Marietta M. Parker sued the had, was proved on the trial of her case to

from danger and the municipality from liability. Port Jervis v. First Nat. Bank, 96 N. Y. 550; Brooklyn v. Brooklyn City R. Co. 47 N. Y. 475, 7 Am. Rep. 469; Congreve v. Morgan, 18 N. Y. 84, 72 Am. Dec. 495.

And the fact that the obstruction was made with the knowledge of the city places the person at fault on the same ground as the licensee. Seneca Falls V. Zalinski, supra.

In such case the licensee cannot defend upon the ground that the work was done for him by an independent contractor. Robbins v. Chicago, 71 U. 8. 4 Wall. 657 (18: 427).

the municipality is competent evidence against the | obstructor, and is conclusive as to his liability and as to the amount of recovery. Troy v. Troy & L. R. Co. 49 N. Y. 657.

The judgment after such notice is conclusive so far as relates to the cause of action, amount of damages, and other matters necessarily involved therein. Seneca Falls v. Zalinski, 8 Hun, 571.

Such judgment is conclusive both as to liability of corporation to person injured and as to any matter which might have been urged as a defense; so as to contributory negligence. Rochester v. Montgomery, 72 N. Y. 65; Boston v. Worthington, 10 Gray, 496.

In case of work done for the municipality upon contract, the liability of the contractor must be ex- A municipal corporation which has been compressed, and in case it is not and a judgment is pro-pelled to pay damages for injuries sustained by cured against the city it cannot recover over against the contractor. Buffalo v. Holloway, 7 N. Y. 493, 57 Am. Dec. 550.

The abutting owner is not without statute or charter liable for the care of streets. In such a case there can be no recovery over. Fulton v. Tucker, 5 Thomp. & C. 621.

Notice of suit brought and opportunity to defend is usually given the person causing the obstruction, by the corporation intending to hold him to recovery over. Express notice is unnecessary. It is enough that the party knew the suit was pending and might have defended it. Barney v. Dewey, 13 Johns. 224, 7 Am. Dec. 372; Beers v. Pinney, 12 Wend. 309; Heiser v. Hatch, 86 N. Y. 814.

The omission to give notice does not go to the right of action but simply changes the burden of proof and imposes upon the party against whom the action was recovered the necessity of again litigating and establishing all the actionable facts. Aberdeen v. Blackmar, 6 Hill, 324; Bridgeport F. & M. Ins. Co. v. Wilson, 34 N. Y. 275; Biusse v. Wood, 87 N. Y. 526.

reason of the wrongful acts of a third person rendering a street unsafe has a remedy over against such third person, unless as to him the corporation is itself a wrongdoer. Woods v. Groton, 111 Mass. 357; Milford v. Holbrook, 9 Allen, 17, 85 Am. Dec. 735; Catterlin v. Frankfort, 79 Ind. 547, 41 Am. Rep. 627; Elkhart v. Wickwire, 87 Ind. 77; McNaughton v. Elkhart, 85 Ind. 384; Brookville v. Arthurs, 130 Pa. 501: Keokuk v. Independent Dist. of Keokuk, 53 Iowa, 352, 36 Am. Rep. 226; Jansen v. Atchison, 16 Kau. 358.

If, because of the negligence of a lot owner in permitting water to leak from a defective pipe to the sidewalk, the city is compelled to pay a judgment, the town may sue the lot owner. New York v. Dimick, 20 Abb. N. C. 15.

A city or town may maintain an action of debt upon the promise of a railroad company to repay the damages recovered against the former by a person injured through a defective railroad crossing. Portland v. Atlantic & St. L. R. Co. 66 Me. 485. Under a contract with a municipal corporation, by which the contracting party undertakes to keep

With notice, the record of the judgment against a street in repair, the damages recoverable on a

have been an open gas box placed and main-1 on or off from the house. It was, moreover, tained in the sidewalk by the Gas Company shown that this box was placed in the sidewalk for its own use and benefit, and which it was so as to be level with its surface, and that the its duty to repair; that this duty had been cover thereon was held in place by lugs which grossly neglected by allowing the box to re- slipped into slots made for the purpose. In main unrepaired, thus causing the injury for addition it was proved that the box was put in which the city had been held liable. The dec- by the company in accordance with the genlaration, moreover, averred notice to the Gas eral methods used for introducing gas, and in Company, and the fact that adequate oppor- compliance with the form of structure pointed tunity was given it to defend, and the failure out by an ordinance of the board of common of the Gas Company to act in defense of the council of the city of Washington, passed in suit. To this demand the defendant the (Gas March, 1868. Both parties introduced proof Company) filed a plea of the general issue, and showing that the service pipe, the stopcock by stipulation it was agreed that it might therein, and the gas box were put in at the rethereunder avail itself of any defense which it quest of the owner of the premises in front of might have. which they were situated. That they were constructed by the Gas Company, which furnished the materials, and worked as any other plumber would have done, being paid therefor by the owner of the premises; that in order to do this work the company had first to obtain permission to open the street to make the requisite connections, and had paid to the District a permit fee of $1. There was, moreover, proof tending to show that when the gas box was first put in the work was skilfully done; that it was originally placed in a brick footway then existing, and near the curbstone, but that subsequently the board of public works of the District of Columbia widened the footway, and in consequence of this widening the gas box came to be about in the middle of the sidewalk.

On the trial of the cause before a jury, testimony was introduced tending to show that the gas box or stopcock box in question was placed by the Gas Company in the sidewalk in the city of Washington in 1873, this gas box being one of the customary appliances used by the company when connecting its mains with a house where gas was to be used; that this box consisted of an iron cylinder, four inches wide and two and a half feet deep, with an iron cover. The box served the purpose of affording access to a cock in the service pipe, which latter conducted the gas from the main of the company to the gas meter in the house, whence it was carried to the burnBy means of this box or cylinder, on re318] moving the cover *therefrom with a key made for the purpose, the cock in the service pipe could be reached, and the gas be thus turned

ers.

Testimony was also introduced, tending to show that where the owners of private property

breach are not restricted to the expense of repair- Jervis v. First Nat. Bank, 96 N. Y. 550; Binsse v. ing; the corporation may recover, in addition | Wood, 37 N. Y. 530; Aberdeen v. Blackmar, 6 Hill, thereto, an amount for which it has been adjudged 324. liable to a third person for injuries sustained by him by reason of the nonrepair. Brooklyn v. Brooklyn City R. Co. 8 Abb. Pr. N. S. 356.

The mere failure of an abutter to clean snow from the sidewalk as required by a city ordinance does not render him liable to one who is injured by falling thereon, nor can the city recover from him damages which it has been compelled to pay the injured person. Kirby v. Boylston Market Asso. 14 Gray, 249, 74 Am. Dec. 682; Heeney v. Sprague, 11 R. I. 456, 23 Am. Rep. 502; Moore v. Gadsden, 93 N. Y. 12; Flynn v. Canton Co. 40 Md. 312, 17 Am. Rep. 603; Hartford v. Talcott, 48 Conn. 526, 40 Am. Rep. 189.

When such remedy over against a wrongdoer exists, the corporation may notify such wrongdoer of the pendency of the action against it and request him to come in and defend; he will then be concluded by the judgment as to the existence of the defect, the liability of the city, and the amount of damages. Portland v. Richardson, 54 Me. 46, 89 Am. Dec. 720; Morgan v. Muldoon, 82 Ind. 347; Bever v. North, 107 Ind. 544.

When the negligent obstruction of a street by a railroad company causes an accident for which Judgment has been recovered against the city, the city, unless it concurred in the wrong, has its remedy against the company. And, in the suit over, the record of the suit against the city is admissible in evidence, if the company had notice of its pendency and was requested to defend. Western & A. R. Co. v. Atlanta, 74 Ga. 774.

The notice need not be in writing. Robbins v. Chicago, 71 U. S. 4 Wall. 657 (18: 427); Barney v. Dewey, 13 Johns. 225, 7 Am. Dec. 372.

If, after notice and request to defend, the person who wrongfully created the obstruction which caused the injury fails to make any defense to the action against the city, and the city defends it for him, it may, if guilty of no misfeasance itself, recover from him, not only the amount of the judgment recovered from it, but also all reasonable and necessary expenses incurred in defending the action, including reasonable attorney fees. Westfield v. Mayo, 122 Mass. 100, 23 Am. Rep. 292; Veazie v. Penobscot R. Co. 49 Me. 119; Chesapeake & O. Canal Co. v. Allegany County Comrs. 57 Md, 201, 40Am. Rep. 430; Baxendale v. London, C. D. R. Co. L. R. 10 Exch. 35. Contra, Littleton v. Richardson, 32 N. H. 59.

Where a city has been compelled to pay a judgment to one injured by reason of a pile of sand in the street, the corporation may maintain an action against the owner of the building, who caused the sand to be left there. Rochester v. Montgomery, 9 Hun, 394; Seneca Falls v. Zalinski, 8 Hun, 571.

In absence of statute or contract a village cannot recover over against the owner for neglect to repair a sidewalk. Fulton v. Tucker, 8 Hun, 529. The abutting owner may be liable to the public corporation having control of the road or street and under a legal duty to keep it in suitable condition for travel for unlawfully meddling with the way, to the injury of such corporation. If the The omission to give such notice will not preju-owner wrongfully makes the way unsafe, the cordice the right of the city to maintain an action poration may repair it and recover of him the against the wrongdoer, but it leaves the corpora- amount it was compelled to expend in making the tion with the burden of again litigating such mat- repairs. Centerville v. Woods, 57 Ind. 192; Bishop, ters and establishing the actionable facts. Port | Non-Cont. Law, 88 1003, 535.

paid the Gas Company the cost of laying lateral | that he lived within a few doors of the place service pipes and connections with the street where the Parker accident happened, and had mains and discontinued the use of gas in the noticed the gas box which caused the accident premises, they would not be permitted to re- to be out of order "for two or three weeks move the same; that an adjoining private prop- prior to the accident to Mrs. Parker, and that erty owner was never permitted to have a key to he did not know how the top of the box came the gas box, and that the defendant has, so far off, but he bad noticed it." as such property owners are concerned, maintained and exercised exclusive supervision and control of the same. There was evidence also introduced tending to show that the defendant had men employed whose duty it was to ex319] amine, about the first of each month, the condition of the meters in every house throughout the District into which gas had been introduced by the defendant, and that it was the duty of these employees to notice and report whether the gas boxes in the sidewalks were uncovered or out of order. The evidence moreover tended to establish that the superintendent of the Gas Company, when his attention had been called to the fact that gas boxes needed repair, had often caused such repair to be done by having the covers put on or doing any other required work. To the contrary, proof was also introduced tending to show that after the gas boxes were put in, the Gas Company took no further care or charge of them.

The District offered in evidence the record of the suit brought by Mrs. Parker and made proof that it paid the amount of the judgment therein rendered. The testimony which had been given by Mrs. Parker on the trial of that case was also afforded in evidence and admitted over objection, although no exception was reserved. This testimony tended to show that the sole cause of the injury for which she sued and had recovered was an open gas box in which, whilst walking on the street, her foot had become engaged. The deposition of Mrs. Parker taken in the case on the trial was also offered in evidence by the District, and contained the following description of the accident:

At the close of the testimony offered in behalf of the District, the defendant company requested a peremptory instruction in its favor, which was refused and exception was taken. The plaintiff then asked for the following instructions: First, that the obligation of supervising and keeping the gas box in order rested on the Gas Company, and that if it had neglected so to do after actual notice of its being out of order, or after such condition had existed for a sufficient length of time to have enabled the company, with reasonable diligence, to have discovered it, the Gas Company was liable. Second, that if the company had notice of and opportunity to defend the original suit, it was bound by the judgment therein rendered. These instructions were given. The defendant company asked for several instructions, which were refused, and exceptions were reserved consequent on such refusal. They were: First, that the Gas Company was not obliged to keep the box in order; second, that, even if it was originally so bound, the widening of the footwalk by the city and the consequent shifting of the box to the middle of the sidewalk, had relieved it of such obligation; third, that if the jury found from the evidence that the injury of Mrs. Parker was caused in whole or in part from a defect in the sidewalk alongside of the gas box, the defendant should have a verdict; fourth, if the jury found from the evidence that the injury for which Mrs. Parker recovered was caused by the fault of both parties to the suit, the defendant was also entitled to a verdict. This last request *the court declined to give on the [321 ground that it was already covered by a general instruction given. The court in its gen"The accident occurred in front of 121 Ceral charge instructed the jury substantially as street N. E., about 5 o'clock in the afternoon follows: That the primary duty rested on the of March 10, A. D. 1879. The immediate cause Gas Company to repair and keep the gas box of the accident was an open gas box in about in order; bence, if the District had been comthe center of the sidewalk. It was a perfect pelled to pay as a result of the negligence of trap, as it was upon a level of the sidewalk, the Gas Company in discharging its legal obexcept at the side I stepped into, and there was ligation, the District was entitled to recover a part of a brick sunk at least an inch and a the amount; that notice having been given of half below the level of the walk so that any the demand made by Mrs. Parker and of the one in walking along could not see but the suit brought by her, and an opportunity havpavement was level until, like myself, when ing been afforded the Gas Company to defend too late. Had not the half of the brick been the same, the judgment in such suit was the sunken, the open hole would not have been so thing adjudged against the defendant company dangerous; for, upon stepping into the hole. I as to the matters which it concluded. It also tried to step back, when I found my box toe instructed that as the original action was for shoe fast in the hole, and the sunken brick let an accident caused by a "deep and dangerous my heel down with my entire weight 14 inches hole," it was lawful and necessary to go bemore than would have occurred had the pave-yond the face of the complaint and ascertain ment been perfect around the gas box." 320] *The District, moreover, after proving the death of H. Clay Smith, a witness who had testified in the original suit, and the loss of the notes of his testimony, offered to prove by the stenographer who had taken the original notes what had been Smith's testimony. This was objected to, and on its being overruled, exception was reserved. The stenographer testified that Smith had on the original trial sworn

from the evidence whether the deep and dan gerous hole referred to was the gas box of the defendant company; that the jury were to determine by an examination of the testimony offered in that case whether the verdict in the first suit was alone based on the gas box; if so, the District was entitled to recover. If, on the other hand, the jury found that the controversy in the first suit involved the question of liability on the part of the city for the gas

Boston v. Worthington, 10 Gray, 496. And it is incompetent for the party in default to prove that in making a dangerous excavation he was guilty of no negligence, or that he properly guarded and covered the same on leaving off work on the night of the injury.ufacture of gas and which were needed to conPortland v. Richardson, 54 Me. 46, 89 Am. Dec. 720.