Mr. Presiding Justice Gridley
delivered the opinion of the court.
The main points urged by counsel for plaintiff as grounds for reversal are in substance (1) that the finding and judgment in each action are contrary to the evidence, in that the evidence shows that the collision occurred through the failure of the conductor and motorman of the street car of the City Railway Company to observe the requirements of the contract of October 1, 1911, and not through any fault on the part of the plaintiff railroad; and (2) that the trial court erred in holding that the verdict and judgment in the Kittier suit in the superior court were res adjudicata.
Counsel for defendants have assigned one cross error in each action, to the effect that the trial court erred in refusing to hold as a proposition of law that said contract of October 1, 1911, is void, and that, therefore, the finding and judgment should be in favor of the defendants. They state that, while the judgment should be affirmed for other reasons, they assign the cross error so as not to be precluded from arguing that said contract is void. And this is one of their contentions here argued. Another is that the City Railway Company, not being a party to said contract, is not bound by it. Counsel for plaintiff has argued to the contrary, but in the view we take of the present actions it will be unnecessary for us to discuss these questions.
Counsel for defendants further contend, in substance, that the collision did not occur through the sole negligence of the" City Railway Company, or through the failure of the employees of that company to ascertain before crossing the tracks that the crossing could be made with safety; that these questions of fact were at issue under the pleadings in the Kittier suit tried in the superior court, and were settled by the verdict and judgment in that suit, and that, hence, under the doctrine of res adjudícala or estoppel by verdict, these questions cannot be relitigated; and that, even if this doctrine be not applied, the evidence introduced in the present actions on said questions, and treating said contract of October 1, 1911, as binding upon both defendants, is amply sufficient to support the finding and judgment of the trial court.
■ The present actions are based solely upon said crossing contract of October 1, 1911. From a reading of paragraph .numbered 8 thereof, it appears that the parties agreed that if an accident, or injury occurred to any person at said crossing, for which liability in damages attached, then (1) if it occurred through the sole negligence of the Calumet Company that company should hold the Railroad Company (plaintiff) harmless ; (2) if it occurred through the sole negligence of the Railroad Company that company should hold the Calumet Company harmless; (3) if it occurred through the joint negligence of both companies the liability should be borne equally; and (4) in the event of a collision between the cars of the Calumet Company and cars or engines of the Railroad Company, and it appearing that the employees operating the cars of the Calumet Company shall have failed to stop the car before attempting to make a crossing of the railroad tracks, or shall have failed to exercise due care to ascertain that the crossing could be made with safety, then the sole responsibility for the accident and liability for damages should rest with the Calumet Company.
Plaintiff seemingly bases its right to recover in the present actions on the ground that the collision occurred through the sole negligence of the City Railway Company. This is disclosed from the allegations of plaintiff’s statement of claim, from the evidence introduced by plaintiff on the trial, and from the arguments of plaintiff’s counsel in this Appellate Court. Plaintiff is not seeking reimbursement on the theory that the collision occurred through the joint negligence of it and the City Railway Company, in which case under the provisions of the contract the liability therefor was to be borne equally by them.
Bearing on the main question to be decided, i. e., whether the collision occurred through the sole negligence of the City Railway Company, two other questions were presented to the trial court, by virtue of the provisions' of said contract, viz.: (1) Whether the employees of the City Railway Company failed to stop the car before attempting to cross the railroad tracks, and (2) whether they failed to ‘ ‘ exercise due care to ascertain” that the crossing could be made with safety. As to the words “exercise due care to ascertain” we think that they should be construed to mean that said employees should be required only to use reasonable care to ascertain- that the crossing could be made with safety and not that they should make sure of that fact. (Philip v. Heraty, 135 Mich. 446, 450; Coulter v. Illinois Cent. R. Co., 264 Ill. 414, 421.)
As to the question whether the street car came to a full stop before proceeding across the tracks, we think that it was disclosed by a preponderance of the evidence in the present actions that the car did so stop. By the provisions contained in paragraph 6 of the contract it was required that the car should be brought to a full stop at a point “not less than 25 nor more than 50 feet from the first tracks of the Railroad Company.” If there was a violation of the provisions as regards the distance from said first tracks where the car stopped, we think that the evidence clearly shows that the collision was not caused thereby. (Coulter v. Illinois Cent. R. Co., 264 Ill. 414, 422.)
As to the question whether the employees of the City Railway Company failed to exercise due care to ascertain that the crossing of the tracks could be made with safety, counsel for defendants contend (1) that the question was settled in favor of the City Railway Company in the Kittier suit, and the verdict and judgment in that suit estop plaintiff from relitigating the same question in the present actions; and (2) that the evidence introduced in the present actions on said question is amply sufficient to support the finding. It appears from the declaration filed in the Kittier suit, and from the evidence heard and the instructions given to the jury on the trial of that suit, that this question was one of the issues of fact there to be decided. In that suit the defendant, Calumet Company, was not a party. Of the three parties sued, the jury found the City Railway Company and the Chesapeake & Ohio Railway Company not guilty, and the plaintiff railroad company guilty, and the judgment rendered upon said verdict has not been reversed. The mere fact that the issue in the present actions arises upon a contract while in the Kittier suit it arose by virtue of the Injuries Act is not important. The issue is the same. Although the plaintiff has been required to pa,y two claims for damages because of the collision, there was but one collision. We think that plaintiff is estopped by said verdict to relitigate the question. (Wright v. Griffey, 147 Ill. 496, 498, and cases there cited; Stoecker v. Thoren, 189 Ill. App. 504; Mahannah v. Mahannah, 292 Ill. 133, 138.) The defendant, Calumet Company, in the present actions was, in effect, the lessor of the street car tracks over which the street car of the defendant, City Railway Company, was being run at the time of the collision, and, as such lessor, it would be liable for the negligence of its lessee. (Anderson v. West Chicago St. R. Co., 200 Ill.
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Mr. Presiding Justice Gridley
delivered the opinion of the court.
The main points urged by counsel for plaintiff as grounds for reversal are in substance (1) that the finding and judgment in each action are contrary to the evidence, in that the evidence shows that the collision occurred through the failure of the conductor and motorman of the street car of the City Railway Company to observe the requirements of the contract of October 1, 1911, and not through any fault on the part of the plaintiff railroad; and (2) that the trial court erred in holding that the verdict and judgment in the Kittier suit in the superior court were res adjudicata.
Counsel for defendants have assigned one cross error in each action, to the effect that the trial court erred in refusing to hold as a proposition of law that said contract of October 1, 1911, is void, and that, therefore, the finding and judgment should be in favor of the defendants. They state that, while the judgment should be affirmed for other reasons, they assign the cross error so as not to be precluded from arguing that said contract is void. And this is one of their contentions here argued. Another is that the City Railway Company, not being a party to said contract, is not bound by it. Counsel for plaintiff has argued to the contrary, but in the view we take of the present actions it will be unnecessary for us to discuss these questions.
Counsel for defendants further contend, in substance, that the collision did not occur through the sole negligence of the" City Railway Company, or through the failure of the employees of that company to ascertain before crossing the tracks that the crossing could be made with safety; that these questions of fact were at issue under the pleadings in the Kittier suit tried in the superior court, and were settled by the verdict and judgment in that suit, and that, hence, under the doctrine of res adjudícala or estoppel by verdict, these questions cannot be relitigated; and that, even if this doctrine be not applied, the evidence introduced in the present actions on said questions, and treating said contract of October 1, 1911, as binding upon both defendants, is amply sufficient to support the finding and judgment of the trial court.
■ The present actions are based solely upon said crossing contract of October 1, 1911. From a reading of paragraph .numbered 8 thereof, it appears that the parties agreed that if an accident, or injury occurred to any person at said crossing, for which liability in damages attached, then (1) if it occurred through the sole negligence of the Calumet Company that company should hold the Railroad Company (plaintiff) harmless ; (2) if it occurred through the sole negligence of the Railroad Company that company should hold the Calumet Company harmless; (3) if it occurred through the joint negligence of both companies the liability should be borne equally; and (4) in the event of a collision between the cars of the Calumet Company and cars or engines of the Railroad Company, and it appearing that the employees operating the cars of the Calumet Company shall have failed to stop the car before attempting to make a crossing of the railroad tracks, or shall have failed to exercise due care to ascertain that the crossing could be made with safety, then the sole responsibility for the accident and liability for damages should rest with the Calumet Company.
Plaintiff seemingly bases its right to recover in the present actions on the ground that the collision occurred through the sole negligence of the City Railway Company. This is disclosed from the allegations of plaintiff’s statement of claim, from the evidence introduced by plaintiff on the trial, and from the arguments of plaintiff’s counsel in this Appellate Court. Plaintiff is not seeking reimbursement on the theory that the collision occurred through the joint negligence of it and the City Railway Company, in which case under the provisions of the contract the liability therefor was to be borne equally by them.
Bearing on the main question to be decided, i. e., whether the collision occurred through the sole negligence of the City Railway Company, two other questions were presented to the trial court, by virtue of the provisions' of said contract, viz.: (1) Whether the employees of the City Railway Company failed to stop the car before attempting to cross the railroad tracks, and (2) whether they failed to ‘ ‘ exercise due care to ascertain” that the crossing could be made with safety. As to the words “exercise due care to ascertain” we think that they should be construed to mean that said employees should be required only to use reasonable care to ascertain- that the crossing could be made with safety and not that they should make sure of that fact. (Philip v. Heraty, 135 Mich. 446, 450; Coulter v. Illinois Cent. R. Co., 264 Ill. 414, 421.)
As to the question whether the street car came to a full stop before proceeding across the tracks, we think that it was disclosed by a preponderance of the evidence in the present actions that the car did so stop. By the provisions contained in paragraph 6 of the contract it was required that the car should be brought to a full stop at a point “not less than 25 nor more than 50 feet from the first tracks of the Railroad Company.” If there was a violation of the provisions as regards the distance from said first tracks where the car stopped, we think that the evidence clearly shows that the collision was not caused thereby. (Coulter v. Illinois Cent. R. Co., 264 Ill. 414, 422.)
As to the question whether the employees of the City Railway Company failed to exercise due care to ascertain that the crossing of the tracks could be made with safety, counsel for defendants contend (1) that the question was settled in favor of the City Railway Company in the Kittier suit, and the verdict and judgment in that suit estop plaintiff from relitigating the same question in the present actions; and (2) that the evidence introduced in the present actions on said question is amply sufficient to support the finding. It appears from the declaration filed in the Kittier suit, and from the evidence heard and the instructions given to the jury on the trial of that suit, that this question was one of the issues of fact there to be decided. In that suit the defendant, Calumet Company, was not a party. Of the three parties sued, the jury found the City Railway Company and the Chesapeake & Ohio Railway Company not guilty, and the plaintiff railroad company guilty, and the judgment rendered upon said verdict has not been reversed. The mere fact that the issue in the present actions arises upon a contract while in the Kittier suit it arose by virtue of the Injuries Act is not important. The issue is the same. Although the plaintiff has been required to pa,y two claims for damages because of the collision, there was but one collision. We think that plaintiff is estopped by said verdict to relitigate the question. (Wright v. Griffey, 147 Ill. 496, 498, and cases there cited; Stoecker v. Thoren, 189 Ill. App. 504; Mahannah v. Mahannah, 292 Ill. 133, 138.) The defendant, Calumet Company, in the present actions was, in effect, the lessor of the street car tracks over which the street car of the defendant, City Railway Company, was being run at the time of the collision, and, as such lessor, it would be liable for the negligence of its lessee. (Anderson v. West Chicago St. R. Co., 200 Ill. 329, 332.) The Calumet Company is, so to speak, in privity with the City Railway Company and we think that the doctrine of res adjudicata or estoppel by verdict can also properly be applied as to it. (Emery v. Fowler, 39 Me. 326, 328, 331; Anderson v. West Chicago St. R. Co., 200 Ill. 329, 334, 337.) Furthermore, after a review of the evidence introduced in the present actions bearing upon the question as to whether the employees of the City Railway Company exercised due care to ascertain whether the crossing could be made with safety, we are of the opinion that such evidence is sufficient to support the finding and judgment of the trial court.
As to the question whether the collision occurred . through the sole negligence of the City Railway Company, we find from an examination of the pleadings in the Kittier suit, and the evidence heard and the instructions given in that suit, that such question was. in effect one of the issues there to be decided. The declaration charged certain negligence on the part of the motorman and conductor of the car of the City Railway Company and certain negligence on the pa,rt of the Chesapeake & Ohio Railway Company. It also, charged, in substance, that the towerman of plaintiff, who was in charge of the gates, negligently raised the gates, thereby inviting the street car to proceed across the railroad tracks, at a time when he had knowledge that the passenger train was approaching. On the trial each company sought to evade liability by attempting to show that the responsibility for the collision rested upon others than itself. The jury found the plaintiff railroad company guilty and the City Railway Company and the Chesapeake & Ohio -Railway Company not guilty, and a judgment was rendered upon the finding which has not been reversed. The jury’s finding, we think, amóunted to a finding that the negligence of the plaintiff railroad company was the sole and proximate cause of the collision. And it follows that the collision was not caused by the sole negligence of the City Railway Company. We are of the opinion, under the authorities above cited, that plaintiff is estopped by said verdict to relitigate this question, and that such estoppel can also properly be applied as to the Calumet Company. And, after a review of the evidence introduced in the present actions and bearing upon the question, we are also of the opinion that the same is sufficient to support the finding and judgment of the trial court.
For the reasdns indicated the judgment of the municipal court in the action here numbered 26453 is affirmed.
Affirmed.
Barnes and Morrill, JJ., concur.