
    Mario Nardolillo vs. Frank C. Carroll.
    JULY 26, 1944.
    Present: Flynn, C. J., Moss, Capotosto, Baker and Condon, JJ.
    
      For former opinion, see 70 R. I. 133.
    
      Luigi Capasso, Joseph Capasso, for plaintiff.
    
      Francis V. Reynolds, for defendant.
   Per Curiam.

After the filing of our opinion the plaintiff, by leave of court, filed a motion for reargument. We have carefully considered said motion and the reasons assigned therefor.

The matters discussed therein were fully considered and passed upon before the filing of our original opinion. The plaintiff then, as now, argued that the instant case and the case heretofore decided in which the parties were reversed were different causes of action. The plaintiff admits, however, that the basic issues in these two cases are identical, namely, the negligence of the parties.

Assuming, without deciding, that the causes of action here are different, the following citation of authority from the plaintiff’s motion makes it clear that his present contention is not sound. In 23 Cyc. 1297, it is stated: “But the weight of authority is that, where the second action, although between the same parties, is on a different cause of action, the judgment is not conclusive on all matters which might have been litigated in the former action, but only as to such points or questions as were actually in issue and adjudicated therein.” (italics ours) See Cromwell v. County of Sac, 94 U. S. 351, 353.

The questions of the negligence of Nardolillo as the proximate cause of the accident and of Carroll’s freedom from contributory negligence were actually in issue and were necessarily adjudicated in the case which was tried. The judgment therein is therefore conclusive on those issues between these parties.

The motion is denied and dismissed.  