McNeely v. Connell

PEAIRS, J.,

pro tem.

This is an appeal brought in an action for personal injuries after three jury trials, in which the final judgment was rendered against the defendant Hill, now appellant. The acts complained of occurred in April, 1917. The complaint was filed in June, 1917, later default entered and vacated and the case was first tried before a jury in July, 1918, with a verdict against both defendants for $2,400. Motion for a new trial was

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granted by the court and the case was tried a second time on December 11, 1918, in which judgment was rendered against defendant Hill, appellant herein, in the sum of $2,500. Motion for a new trial was granted in January, 1919, in these words: “It is now ordered that said motion be granted on the ground alone of plaintiff’s contributory negligence.” Plaintiff appealed from the last-mentioned order in April, 1921, and the order was affirmed by the district court of appeal in 52 Cal. App. 187 [198 Pac. 427]. The ease was again called for trial in June, 1922, wherein, on motion of counsel for plaintiff that the evidence be restricted to the one issue of contributory negligence alone, which motion was denied by the judge, the said case was withdrawn from the calendar. On September 22d plaintiff made application for modification of the former order of the superior court, which was granted by adding the words: “and as to all other grounds and issues the said motion be and is hereby denied.” The cause came on again for trial in April, 1923, at which time the court restricted the issues to be tried to the sole and single one of the alleged contributory negligence of the plaintiff, and that as to all other issues the verdict of the jury on the former trial shall be conclusive. The court placed the burden of proof on the defendant. The jury returned a verdict as follows: “We the jury in the above entitled action find for the plaintiff and find plaintiff was not guilty of contributory negligence.” Thereafter the judgment was rendered in favor of the plaintiff and against the defendant Hill for the sum of $2,500. Prom this judgment the defendant moved for a new trial, which motion was on the twenty-first day of June, 1923, denied.

The appellant, defendant Hill, claims that the decision of the district court of appeal rendered in the above-entitled action on April 7, 1921, is the law of the case; that the trial court had no power to limit the trial to one issue; that the trial court erred in ruling as to evidence and in the refusal of and in the giving of certain instructions. The language of the appellate court in this action as reported in 52 Cal. App. 187 is as follows: “Conceding that there was some evidence tending to exonerate the plaintiff from the charge of negligence, it results that the evidence upon that point was conflicting to such a degree