Ryan
Ryan v. Oakland Gas, Light & Heat Co.
Opinion
Lead Opinion
Chipman, J.
The complaint in this case was filed in December, 1904, and was brought to issue by answer in October, 1905. On appeal from the judgment at the first trial it was held that the evidence was sufficient to support the verdict in favor of plaintiff but the judgment was reversed because of an instruction which, in the opinion of the appellate court, took from the jury a question of fact. Ryan v. Oakland Gas etc. Co., 10 Cal. App. 484 , [ 102 Pac. 558 ],)
Respondent contends that, so far as the facts are concerned, the decision on the first appeal is the law of the case, inasmuch as the evidence is substantially the same—indeed, differs only in the fact that some additional testimony favorable to plaintiff was introduced. It would occupy about as much time and space to determine whether or not respondent’s contention is sound as it would to determine the facts for ourselves ; therefore, we shall not accept the law of the case upon the facts as having been established.
Plaintiff brings the action to recover damages for personal injury while at work as a laborer digging a trench for defendant in the streets of Oakland. The injury complained of occurred July 5, 1904.