Scrimsher

Appellant, Reliance Rock Company, seeks reversal of a judgment of fifteen thousand ($15,000) dollars and costs, based upon the verdict of a jury rendered herein against it and in favor of Mamie Scrimsher, widow, and Winfred Austin Scrimsher, minor child of William Austin Scrimsher, deceased.

The action, which is one for damages for the death of decedent, caused by the claimed negligence of the appellant, was twice tried. Originally commenced September 28, 1927, against Reliance Rock Company, appellant here, and Robert C. Barnes, as defendants, the cause first proceeded to trial before a court and jury on December 12, 1928; at the close of plaintiffs’ case on December 13, 1928, both defendants moved for an order of nonsuit, which, after argument, was taken under submission by the trial judge. On the following day, the 14th of December, 1928, the court announced its decision in the following language:

Thereupon the trial proceeded as against the defendant Barnes alone, resulting in a verdict against him, from which no appeal has ever been taken and which has since become final.

The minutes of the court as they concern the proceedings on the 14th of December, 1928, and the point…