Russ v. American Cereal Co. , 121 Iowa 639 ( 1903 )

Pee. Ouriam.

This is the second appeal in this case and the controlling facts are set forth in the opinion upon the former appeal and will not be repeated. See 110 Iowa, 743. -Upon the case as it was then presented, we held that the plaintiff was not entitled to recover, and that there should have been a directed verdict for the defendant, and for that' re'a'son reversed the judgment of the trial court. Upon a retrial in the district court the • testimony 'given upon the former trial was read to the jury, and in addition thereto two witnesses were examined on the part of the plaintiff; one of them (Taylor) having testified on the other trial, and the other being a new witness. The ap-pellee contends that the facts presented by the present appeal are precisely the same as those shown on the first trial, and that the decision then was a full and complete adjudication. of the present case, and, such being true, that the verdict was properly directed for. the defendant. It is the settled rule in this state that the decision of this court upon the first appeal becomes the law of the case, and is to govern upon' a subsequent trial, thereof in the district court, and upon another, appeal, unless the facts before the court upon the second trial are materially different from those appearing upon the first. Adams County v. B. & M. R. R. Co., 55 Iowa, 94; Babcock v. C. & N. W. Ry. Co., 72 Iowa, 197. The testimony of the witness Taylor given upon the last trial is in all material respects precisely the same as that given by him on the first trial. He was examined on both trials as to the size and condition of the trapdoor, its bearings, and the opening thereunder through which the deceased fell. Upon the last trial he went a little more into detail as to the bearings upon which the door rested when in place, but his testimony gave no new facts as to the exact condition existing at the time of the accident. John M. Null was the new witness used upon the second trial. He was called as an expert, and testified, in answer to hypothetical questions, that in his judgment a strip of board might have-been placed under the west edge of the trap door, so that-it could not have tipped with a given weight upon it, and that it was entirely practicable as a mechanical proposition to furnish sufficient bearings ■ for the door. The entire record in this case shows conclusively that the facts testified to by this witness were as patent to all men of ordinary intelligence as they were to him, and that his testimony added nothing to that already before the jury. An examination of the evidence before the court on both trials convinces us that it was in all material respects precisely the same. The substituted petition filed herein before the last trial omitted all reference to the unfastened condition of the trapdoor hinges, and alleged as the cause of the accident the lack of sufficient bearings for the door. But this can make no material difference in the final disposition of the case, because the same matter was urged and relied upon by the appellant upon the other submission, and was determined adversely to his contention.

The court properly directed a verdict for the defendant, and the judgment is aeeirmed.