McCready

This ease was before this court on a former appeal, where a full statement of the facts as then presented will be found. McCready v. Southern Pac. Co., 26 F.(2d) 569, 570 . After reciting the facts on the former appeal, Judge Dietrich stated the questions for decision as follows:

The first question was answer-ed in the affirmative, the second in the negative, and the judgment of involuntary nonsuit was accordingly reversed and the case remanded for a new trial. Upon a retrial a verdict was returned for the plaintiff, and from the judgment on the verdict this appeal was prosecuted.

Before taking up the assignments of error, it might be well to consider wherein the present record differs from the record on the former appeal, if at all. The appellant contends that it differs in two respects: First, because the construction contract between the appellant and the independent contractor was in evidence on the last trial and not on the former; and, second, because the defense of assumption of risk, withdrawn on the for *674 mer trial, was interposed and relied on at the last trial.>

The first difference suggested does not in fact exist: When the construction contract was offered in…