Wilmer L. LYLE, Plaintiff, Appellant, v. BANGOR & AROOSTOOK RAILROAD COMPANY, Defendant, Appellee, 237 F.2d 683

WOODBURY, Circuit Judge. The plaintiff in an action brought under the Federal Employers’ Liability Act has taken this appeal from a judgment summarily entered for the defendant by the United States District Court for the District of Maine. There is no dispute about the following facts. On May 21, 1952, and for about ten years prior thereto, the plaintiff-appellant was employed by the defendant-appellee as a trackman or “section hand.” About six o’clock in the morning of the day mentioned he reported for work as usual at the car house and tool shack in Millinocket, Maine, which served as headquarters for his gang.

The day was cold and rainy and when he arrived a hot fire was burning in the “potbellied” wood burning stove' used to heat the place. In the shack at the time was the motor driven car used to transport the crew over the rails to and from work, and various tools and supplies such as spikes and similar items including two one-gallon cans of kerosene used for lighting lanterns and flares and starting fires and a five-gallon can of gasoline used for fuelling the crew car.

The plaintiff knew what was in the cans for he had often had occasion as part of his duties to fill them from supplies kept in an “oil-house” a short distance away. The plaintiff with his crew left the car house for work about quarter of seven leaving a “red-hot” fire burning in the stove. They returned wet and cold about half past twelve. Some of the men immediately put more wood in the stove, and when this had been done the plaintiff picked up one of the kerosene cans and began to pour its contents into the stove.

After he had “doused” the wood liberally once or twice an explosion occurred which threw him across the shack and burned him severely. The plaintiff seasonably brought suit against the defendant in the Superior Court of the State of Maine for Penobscot County.

This suit was in four counts, one of them under the Federal Employers’ Liability Act, in each of which the plaintiff alleged that the defendant caused the explosion “by negligently, carelessly, and recklessly furnishing highly dangerous and explosive fuel for' the fire in the stove.” The case came on for trial by jury but at the close of the plaintiff’s evidence the trial court granted the defendant’s motion for a non-suit. The plaintiff then appealed to the Sureme Judicial Court of Maine and that court affirmed. Lyle v. Bangor & Aroostook R. R. Co., 1954, 150 Me. 327, 110 A.2d 584.

The Supreme Judicial Court of Maine brushed aside as mere guess or conjecture the plaintiff’s evidence that the kerosene can he used might have contained a mixture of gasoline and kerosene. It said that the only direct and positive evidence was that the can contained straight kerosene; the testimony that it contained a mixture being only a suspicion in the minds of witnesses born of their erroneous assumption that unmixed kerosene .poured liberally on a fire would not explode.

This assumption, the court said, .contravened well known physical laws with the result that the testimony based upon it could not be accepted as evidence.

Having concluded that on the evidence it could only be found that the can contained kerosene, and noting that kerosene was a readily available household commodity for lighting fires the propensities of which were well known to the public generally and to the plaintiff in particular who had used it for years for that purpose, the court concluded that the defendant was in no way causally negligent in having kerosene' available in the car house or in failing to warn the plaintiff of the dangers incident to its use for kindling fires.

It said that, on the evidence the sole cause of the explosion was the plaintiff’s rash act of pouring kerosene into a stove in which to his knowledge a hot fire had been burning a few hours before. In view of this conclusion the court said there was no need to consider any possible application of the Federal Employers’ Liability Act “as the issue as to the defendant’s negligence would remain unchanged.” The plaintiff did not seek review of this decision by the Supreme Court of the United States on writ of certiorari.

Instead he brought the instant action against the defendant in the court below to recover damages for negligence under the Federal Employers’ Liability Act. The defendant moved to dismiss the action on the ground of failure to state a claim on which relief could be granted. The District Court denied the motion, and when the case came up for pretrial plaintiff’s coúnsel stated to the court that his evidence in this action would be exactly the same as the evidence introduced at the previous trial in the Superior Court of the State of Maine. The defendant then moved for

summary judgment on two grounds: 1) that the judgment of the state court precluded further litigation of the cause, and 2) that as a matter of law the plaintiff’s own negligence was, as the Supreme Judicial Court of Maine had held, the sole proximate cause of his injury. The District Court granted the motion on the second ground and entered the judgment for the defendant from which the plaintiff has taken this appeal.

The plaintiff argues here, as he did in the court below, that the conclusion reached by the Supreme Judicial Court of the State of Maine is wrong and that he should be given an opportunity to present his case to a jury sitting in the United States District Court for the District of Maine. We do not consider the contention that the Supreme Judicial Court for the State of Maine erred, for we think the judgment of that court precludes the plaintiff from trying his case over again in the court below on exactly the same evidence. Maine is a common law state.

As such it follows the rule that although a trial court’s judgment of compulsory nonsuit is final in the sense that it is a judgment which the plaintiff can take to a higher court for review, it nevertheless is not a judgment which, even if affirmed on appeal, precludes a plaintiff by operation of the doctrine of res judicata from bringing another suit against the same defendant for the same cause of action. Pendergrass v. York Mfg. Co., 1884, 76 Me. 509. Am.Law Inst., Restatement, Judgments, § 53 Comment b; 2 Freeman on Judgments (Fifth Ed.) § 755.

That is to say, in Maine the plaintiff’s cause of action was not extinguished by or merged in the judgment of involuntary nonsuit for that judgment did not adjudicate the facts. It only adjudicated the sufficiency of the evidence introduced by the plaintiff at the trial to support a finding in his favor. Thus under Maine law the 1954 judgment in Lyle v. Bangor & Aroostook R. R. Co., supra, does not stand squarely in the way of another suit by the same plaintiff against the same defendant for the same cause of action.

If in a second action the plaintiff should be “able to produce more and better evidence of his claim” Pendergrass v. York Mfg. Co., supra, 76 Me. 513, and thus cure the defect in his evidence found fatal to his case at the first trial, he would be allowed to present his case to a jury and might perhaps prevail. But the plaintiff says that he has no “moré and better evidencehe says he wants to try his case all over again on the same evidence.

In other words, he wants to retry in the court below the very issue determined against him by the Supreme Judicial Court of the State of Maine, that is, the issue of the sufficiency of his evidence to make out a prima facie case of the defendant’s negligence under the Federal Employers’ Liability Act.

This he may not do, for to permit him to try that issue again would run counter to the general principle applicable in the court below and elsewhere labeled “direct” estoppel by judgment in Am.Law Inst., Restatement, Judgments § 45 Comment d, wherein it is said: “Where an issue is actually litigated and determined in an action, the determination is conclusive in every subsequent action between the parties based upon the same cause of action.” See also Linton v. Perry Knitting Co., 1945, 295 N.Y. 14, 64 N.E.2d 270.

The plaintiff, as he had the right to do, litigated in the courts of the State of Maine the question of the sufficiency of all the evidence he has to warrant a finding of the defendant’s negligence under the Federal Employers’ Liability Act. He lost. To allow him to relitigate the same issue in any other court available to him in the hope that by shopping around he may eventually find a court somewhere which will take a different view of the adequacy of his evidence would do violence to the salutary general rule of peace quoted above from the Restatement.

The judgment of the District Court is affirmed. . 45 U.S.C.A. § 51 et seq.