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MARY H. COTTER vs. BOSTON AND NORTHERN STREET RAILWAY COMPANY.

Judgment. A judgment on the merits is a bar to an action between the same parties for the same cause of action not only on all the issues actually tried in the case but on all which might have been tried in it.

A judgment for the defendant in an action brought by a girl less than four years of age against a street railway company for injuries from being struck by an electric car of the defendant through the negligence of its servants and agents, rendered on the ground that the plaintiff and her parents were not in the exercise of due care, is a bar to a subsequent action between the same parties for the same injuries, in which the declaration alleges wilful negligence on the part of the defendant and wanton and reckless conduct on the part of its servants and agents which would make the defendant liable although the negligence of the plaintiff and of her parents might have contributed to her injuries.

LORING, J.

The former judgment was for the same cause of action as that now sued on. It was rendered on the merits and is a bar not only on all the issues actually tried, but on all which might have been tried in it. Foye v. Patch, 182 Mass. 105. Bassett v. Connecticut River Railroad, 150 Mass. 178. Bradley v. Bradley, 160 Mass. 258. Watts v. Watts, 160 Mass. 464, 465. Harlow v. Bartlett, 170 Mass. 584, 591. Clare v. New York New England Railroad, 172 Mass. 211. Butrick, petitioner, 185 Mass. 107.

Judgment affirmed.

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COTTER v. BOSTON NORTHERN STREET R'Y
(Feb 26, 1906)