Atkins

The plaintiff brought an action to recover damages for personal injuries. The defendants answered and a trial was had in the trial court. The jury returned a verdict in favor of the plaintiff. From a judgment based thereon the defendants have appealed under section 953a of the Code of Civil Procedure.

This is the second appeal. ( 65 Cal. App. 94 [ 223 Pac. 87 ].) The facts are so fully stated in the reported case that we need not restate them. On the second trial the plaintiff testified, and also demonstrated, that she did not pause at the corner “one or two minutes” of sixty seconds each. She showed that she barely paused. The defendants claim the new record is substantially the same as the first and that the decision on the first appeal has become the law of the case and that the plaintiff was guilty of contributory negligence and cannot recover. (McClenahan v. Keyes, 65 Cal. App. 467 [ 224 Pac. 241 ].)

If we assume, as the defendants contend, that in view of the facts which we have recited and the decision on the former appeal, the plaintiff was guilty of contributory negligence, the case is not yet determined, because the plaintiff did, on the second trial, rely on the…