Burr v. United R.R. of S.F.

HENSHAW, J.

This is a second appeal. The first will be found reported in 163 Cal. 663, [126 Pac. 873]. The first appeal was taken from the judgment following the trial court’s order of nonsuit. The nonsuit was granted upon the ground that the evidence was insufficient to establish any

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negligence or culpability on the part of the defendant. This court, succinctly stating the substance of the evidence, held that it was sufficient to demand that the ease be presented to the jury for its determination. Upon the second trial, a jury being waived, the judgment of the court was in favor of the plaintiff, and defendant appeals.

Its principal contention upon appeal is that the evidence upon the second trial was in substantial respects different from the evidence presented upon the first trial, and that the evidence now before this court completely exonerates the defendant from the charge of negligence, and establishes that negligence, if negligence there were, was wholly that of the plaintiff. We are constrained to disagree with the view which the appellant takes of the evidence. It need not be repeated, but a careful reading of it discloses that it is in all respects as strong, and in some respects stronger, in favor of respondent- than was the evidence received upon the first trial.

Appellant would have this court adopt the procedure of the supreme court of New York in the case of

Gurrie

v.

New York & N. S. Traction Co.,

151 App. Div. 57, [135 N. Y. Supp. 833], and. reverse the case for the insufficiency of the evidence to establish the neglect of the defendant. True, it is, as appellant declares, that the facts in the New York case are very similar to those in the case at bar. But they are by no means identical in the first place, and in the second place to do this would mean to overthrow the ruling upon the first appeal as to the sufficiency of the evidence and this, even if the rule of the law of the case did not stand in the way, we are not disposed to do.

Both plaintiff and defendant unite in upholding that the following statement of the governing principle, taken from