Weaver v. Bennett

Per Curiam.

Plaintiff assigns as error the submission of the contributory negligence issue and stresses her 'Contention that the evidence was insufficient to support a jury finding that her intestate was oontrib-utorily negligent.

On former appeal, it was contended by defendants that the judgment of involuntary nonsuit Should be .affirmed on the ground, inter alia, that plaintiff’® evidence disclosed her intestate was oontrifoutorily negligent as a matter of law. This Court said: “Careful consideration impels the conclusion that the evidence, when -considered in the light most favorable to .plaintiff, is sufficient to require submission for jury determination of issues as to the alleged negligence of Parrish and as to the -alleged 'Contributory negligence of Weaver.” It is well settled that “a decision of this Court on former appeal constitutes the law of the case in respect to the questions therein presented and decided, both in subsequent proceedings in the trial court and on subsequent ■appeal upon substantially the same evidence.” Glenn v. Raleigh, 248 N.C. 378, 103 S.E. 2d 482; Maddox v. Brown, 233 N.C. 519, 64 S.E. 2d 864.

The evidence on retrial tending to Show the -alleged contributory negligence of plaintiff’s intestate was -at least as favorable to defendants as the evidence considered by time Court on former appeal. In some respects, the -evidence on retrial was more favorable to defendants. Moreover, apart from the foregoing rule as to “the law of the case,” we adhere to the view that the evidence was sufficient to require submission of the contributory negligence issue. In determining this question, the evidence must be considered -in the light most favorable to defendants. Strong, N. C. Index, Negligence § 25, and cases cited.

The other 'assignments of error brought forward by plaintiff challenge certain of the -eouit’is -rulings on evidence and instructions to the jury. Bach h-ais been -carefully considered. However, these .assignments of error do not disclose prejudicial error -and discussion thereof is deemed unnecessary.

No error.