Young

This is an appeal by the plaintiffs from a judgment of nonsuit entered against them in favor of defendants in an action to recover damages for the death of one Frederick Bluhm, son of one of the plaintiffs.

Upon the first trial of the case, in which both the issue of contributory negligence on the part of the deceased and the doctrine of last clear chance were presented to the jury, the plaintiffs recovered. Upon appeal from the first judgment entered upon the verdict of the jury in favor of the plaintiffs and against all of the defendants, this court held that the undisputed evidence showed that the deceased was, as a matter of law, guilty of contributory negligence and that, therefore, the issue of contributory negligence should not have been submitted to the jury. And inasmuch as some of the defendants manifestly could not in any view of the evidence be held liable for the death of the deceased, under the doctrine of last clear chance, the judgment was reversed because it was impossible to ascertain whether the verdict of the jury, against all of the defendants, was had in response to the charge of the trial court upon the issue of contributory negligence or was predicated…

I dissent. Upon the former appeal I joined in the dissent on the ground that while the instructions on contributory negligence were erroneous, under the evidence the verdict might well have been based upon the doctrine of the last, clear chance. To this conclusion I still adhere. I have not been able to convince myself that the former decision is susceptible of the interpretation put upon it by the majority opinion that it held, so as to become the law of the case, that the evidence was insufficient as matter of law to justify a verdict for the plaintiff under the doctrine of the last clear chance, although the law which would govern that issue on a retrial was declared. As I have this view, and as the evidence on the retrial is of the same general import as that on the first trial, I think it was sufficient to have gone to the jury.