Letton, J.
Plaintiff recovered a judgment against defendant for personal' injuries. This judgment was appealed to this court and reversed generally (Nedela v. Mares Auto Co., 106 Neb. 883), for the reason that the evidence showed that both plaintiff and defendant were under the employers’ liability act.
At the second trial defendant moved that plaintiff be required to elect ivhether he would proceed under the common law or under the employers’ liability act. Plaintiff stated that he had elected at the former trial to proceed under the common law, and he stood upon that election. At the close of plaintiff’s testimony, defendant moved for a directed verdict “in conformity with the mandate of the supreme court of Nebraska heretofore returned and filed in this case, and because the plaintiff’s evidence is insufficient to constitute a case in favor of the plaintiff and against the defendant.” This motion was sustained and the jury instructed that, “under the opinion of the supreme court rendered in this case, you should return a verdict in favor of the defendant.” The action was then dismissed. Plaintiff has appealed.
On the former appeal defendant insisted that both parties were under the employers’ liability act. Plaintiff argued that the defendant had not shown that the parties were under the provisions of part II of the act, because they did not prove that they had complied with the provisions of section 3687, Rev. St.. 3 913, as amended, now section 3069, Comp. St. 1922, and that therefore he was entitled to recover for negligence under the common law. This court held that it was not necessary for defendant to prove compliance with this section, as this would be presumed. At the second trial plaintiff furnished conclusive proof that defendant had not complied with this section, and therefore ivas not within the statute.
[110]*110Defendant now insists that plaintiff was not entitled to make this proof, and that the decision of this court upon the former trial settled the law to the effect that both parties were under the employers’ liability act, and the district court took this view. We think the court misapprehended the effect of the former decision. The case was reversed generally. At another trial plaintiff was entitled to furnish additional evidence, If necessary, to maintain his cause. A decision of a reviewing court upon the facts does not constitute the law of the case, unless the evidence at the second trial is the same, or substantially the same, as that adduced at the first trial. When an element essential to plaintiff’s recovery is lacking in the first trial, but is proved at the second trial, this additional evidence cannot be ignored, and the legal questions presented must be determined according to the new aspect of the evidence. Lane v. Starkey, 20 Neb. 586; Missouri P. R. Co. v. Fox, 60 Neb. 531; State v. Paxton, 65 Neb. 110; Gadsden v. Thrush, 72 Neb. 1; Sowerwine v. Central Irrigation District, 91 Neb. 457. The court therefore erred in instructing the jury that plaintiff was concluded by the opinion of the supreme court.
It is next contended that section 3687, Rev. St. 1913, as amended, now section 3069, Comp. St. 1922, is unconstitutional because it amends section 3653, Rev. St. 1913, as amended, noAV section 3035, Comp. St. 1922, without mentioning it. The act has been amended several times since 1913. As originally written section 3687 merely provided that an employer might take ouc liability insurance. The section as amended provides in substance that every employer shall insure his liability under the act, or he “shall furnish to the compensation commissioner satisfactory proof of his financial ability to pay direct the compensation in the amount and manner Avhen due as provided for in this act,” and every employer who refuses to comply Avith the conditions set forth in the section “shall be deemed to have elected not [111]*111to come under part IT hereof, and shall be required to respond in damages * * * in like manner as if the employer had filed an election with the compensation commissioner i*ejecting the provisions of part IT.” Section 3653 (Comp. St. 1922, sec. 3035) provided: “Every such employer and every employee is presumed to accept and come under part II hereof, unless prior to accident he shall signify his election not to accept or be bound by the provisions of part II,” etc. As the law stood, an employer was under part II unless he gave either written or printed notice to the employee that he does not accept the provisions of part II. Under section 3687, as amended,. now section 3069, Comp. St. 1922, if the employer fails to insure or fails to satisfy the commissioner as to his financial ability, he shall be deemed to have elected not to come under paí’t II.
The amended section does not amend section 3653, but merely furnishes another method of evidencing that the employer does not elect to bring himself within the provisions of the act. Failure to insure allows the employee to elect whether to apply for compensation under the statute, or to depend upon legal remedies for damages for negligence. Avre v. Sexton, p. 149, post.
it is next urged that the evidence does not establish any negligence on the part of defendant. Was there sufficient evidence presented by the plaintiff to require submission of this question to a jury? The former opinion does not fully state the facts. In addition to those recited in that opinion, it appears that on the evening of December 21, 1921, the manager called Nedela to a bench near which he was standing and asked him to hold the wheel of a Ford automobile Avhich he had placed vertically upon the bench. Plaintiff held it by the rim. The manager Avas trying to move the ball cones from the inside of the hub. He put a punch inside the hub and struck it with a hammer. Immediately a small piece of steel flew out and entered plaintiff’s eye, from the result of Avhich it became necessary to remove the eye.
[112]*112The testimony on behalf of plaintiff by men experienced, in such work is that the usual and customary method of removing the ball cones from such wheels is by holding the wheel against the workman’s knee, or against the bench at such an angle that, when the punch is inserted from the upper side, and struck by a hammer, there is little danger from pieces of steel flying into the face, or if the cones are difficult to remove, the Avheel is placed over a nail keg, or in a vise, flatwise, so that the punch is directed downwards, it being dangerous to perform such work unless the wheel is in such a position that the sparks are not liable to be driven or fly into the eyes of the workman. There is also testimony that it is not customary for more than one man to remove these cones, as it is easily done if the wheel is properly placed.
Since a verdict was directed at the close of plaintiff’s testimony, there is no evidence to contradict these statements, and there Avas sufficient evidence to take the question of negligence to the jury, unless the defendant’s contention is sound that, a punch and hammer being simple tools, and not being shoAvn to be in any wise defective, there can be no negligence as a matter of law in their use by the defendant’s manager. Attention is called to the fact that plaintiff testified, when cross-examined, that if a punch was put against a piece of iron, or steel, and hit with a hammer, sometimes a chip might fly off.
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Letton, J.
Plaintiff recovered a judgment against defendant for personal' injuries. This judgment was appealed to this court and reversed generally (Nedela v. Mares Auto Co., 106 Neb. 883), for the reason that the evidence showed that both plaintiff and defendant were under the employers’ liability act.
At the second trial defendant moved that plaintiff be required to elect ivhether he would proceed under the common law or under the employers’ liability act. Plaintiff stated that he had elected at the former trial to proceed under the common law, and he stood upon that election. At the close of plaintiff’s testimony, defendant moved for a directed verdict “in conformity with the mandate of the supreme court of Nebraska heretofore returned and filed in this case, and because the plaintiff’s evidence is insufficient to constitute a case in favor of the plaintiff and against the defendant.” This motion was sustained and the jury instructed that, “under the opinion of the supreme court rendered in this case, you should return a verdict in favor of the defendant.” The action was then dismissed. Plaintiff has appealed.
On the former appeal defendant insisted that both parties were under the employers’ liability act. Plaintiff argued that the defendant had not shown that the parties were under the provisions of part II of the act, because they did not prove that they had complied with the provisions of section 3687, Rev. St.. 3 913, as amended, now section 3069, Comp. St. 1922, and that therefore he was entitled to recover for negligence under the common law. This court held that it was not necessary for defendant to prove compliance with this section, as this would be presumed. At the second trial plaintiff furnished conclusive proof that defendant had not complied with this section, and therefore ivas not within the statute.
[110]*110Defendant now insists that plaintiff was not entitled to make this proof, and that the decision of this court upon the former trial settled the law to the effect that both parties were under the employers’ liability act, and the district court took this view. We think the court misapprehended the effect of the former decision. The case was reversed generally. At another trial plaintiff was entitled to furnish additional evidence, If necessary, to maintain his cause. A decision of a reviewing court upon the facts does not constitute the law of the case, unless the evidence at the second trial is the same, or substantially the same, as that adduced at the first trial. When an element essential to plaintiff’s recovery is lacking in the first trial, but is proved at the second trial, this additional evidence cannot be ignored, and the legal questions presented must be determined according to the new aspect of the evidence. Lane v. Starkey, 20 Neb. 586; Missouri P. R. Co. v. Fox, 60 Neb. 531; State v. Paxton, 65 Neb. 110; Gadsden v. Thrush, 72 Neb. 1; Sowerwine v. Central Irrigation District, 91 Neb. 457. The court therefore erred in instructing the jury that plaintiff was concluded by the opinion of the supreme court.
It is next contended that section 3687, Rev. St. 1913, as amended, now section 3069, Comp. St. 1922, is unconstitutional because it amends section 3653, Rev. St. 1913, as amended, noAV section 3035, Comp. St. 1922, without mentioning it. The act has been amended several times since 1913. As originally written section 3687 merely provided that an employer might take ouc liability insurance. The section as amended provides in substance that every employer shall insure his liability under the act, or he “shall furnish to the compensation commissioner satisfactory proof of his financial ability to pay direct the compensation in the amount and manner Avhen due as provided for in this act,” and every employer who refuses to comply Avith the conditions set forth in the section “shall be deemed to have elected not [111]*111to come under part IT hereof, and shall be required to respond in damages * * * in like manner as if the employer had filed an election with the compensation commissioner i*ejecting the provisions of part IT.” Section 3653 (Comp. St. 1922, sec. 3035) provided: “Every such employer and every employee is presumed to accept and come under part II hereof, unless prior to accident he shall signify his election not to accept or be bound by the provisions of part II,” etc. As the law stood, an employer was under part II unless he gave either written or printed notice to the employee that he does not accept the provisions of part II. Under section 3687, as amended,. now section 3069, Comp. St. 1922, if the employer fails to insure or fails to satisfy the commissioner as to his financial ability, he shall be deemed to have elected not to come under paí’t II.
The amended section does not amend section 3653, but merely furnishes another method of evidencing that the employer does not elect to bring himself within the provisions of the act. Failure to insure allows the employee to elect whether to apply for compensation under the statute, or to depend upon legal remedies for damages for negligence. Avre v. Sexton, p. 149, post.
it is next urged that the evidence does not establish any negligence on the part of defendant. Was there sufficient evidence presented by the plaintiff to require submission of this question to a jury? The former opinion does not fully state the facts. In addition to those recited in that opinion, it appears that on the evening of December 21, 1921, the manager called Nedela to a bench near which he was standing and asked him to hold the wheel of a Ford automobile Avhich he had placed vertically upon the bench. Plaintiff held it by the rim. The manager Avas trying to move the ball cones from the inside of the hub. He put a punch inside the hub and struck it with a hammer. Immediately a small piece of steel flew out and entered plaintiff’s eye, from the result of Avhich it became necessary to remove the eye.
[112]*112The testimony on behalf of plaintiff by men experienced, in such work is that the usual and customary method of removing the ball cones from such wheels is by holding the wheel against the workman’s knee, or against the bench at such an angle that, when the punch is inserted from the upper side, and struck by a hammer, there is little danger from pieces of steel flying into the face, or if the cones are difficult to remove, the Avheel is placed over a nail keg, or in a vise, flatwise, so that the punch is directed downwards, it being dangerous to perform such work unless the wheel is in such a position that the sparks are not liable to be driven or fly into the eyes of the workman. There is also testimony that it is not customary for more than one man to remove these cones, as it is easily done if the wheel is properly placed.
Since a verdict was directed at the close of plaintiff’s testimony, there is no evidence to contradict these statements, and there Avas sufficient evidence to take the question of negligence to the jury, unless the defendant’s contention is sound that, a punch and hammer being simple tools, and not being shoAvn to be in any wise defective, there can be no negligence as a matter of law in their use by the defendant’s manager. Attention is called to the fact that plaintiff testified, when cross-examined, that if a punch was put against a piece of iron, or steel, and hit with a hammer, sometimes a chip might fly off. 'The cases- cited by defendant hold that ■ there can be no negligence if the tools furnished by a master are simple tools, defects in Avhich can be readily observed by the workman, and, further, that a piaster cannot be held liable for either latent or visible defects in such tools. But it is not shoAra that there Avas any defect in either the hammer or the punch. The negligence, if any, was not in the condition of tools furnished, [but was in the manner in Avhich the tools were used, and, according to the testimony of his Avitnesses, in placing plaintiff in a very dangerous and [113]*113hazardous position, and which dangerous situation plaintiff, by reason of his inexperience, did not apprehend. Plaintiff had not participated in work of this nature before, although, having been a carpenter, and having had some experience in garages and with threshing machines, he had a general knowledge of the use of such iools.
Section 3613, Rev. St. 1913 (Comp. St. 1922, sec. 3025) provides: “In all cases brought under part I of this article it shall not be a defense (a) that the employee was negligent, unless and except it shall also appear that such negligence was wilful, or that the employee Avas in a state of intoxication; (b) that the injury a vas caused by the negligence of a felloAV employee; (c) that the employee had assumed the risks inherent in, or incidental to, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances, which grounds of defense are herebv abolished, except as provided in the second next folloAving section.” The second section thereafter is not applicable under the facts in this case.
Aside from the plea that both parties Avere under the compensation laAV at the time of the accident, the defenses pleaded are a denial that defendant Avas guilt-y of negligence, and an affirmative plea that plaintiff assumed the risks of the employment. Under the above section, assumption of risk inherent in, or incidental to, the employment, or arising from the failure of the employer to proAdde suitable appliances, is abolished as a defense. The only question left, as the pleadings noAV stand, is Avhether defendant Avas guilty of negligence, and, if sb, the amount of damages plaintiff suffered.
We are unable to say as a matter of law that defendant Avas not negligent in placing the plaintiff in such a position when the punch was struck by the hammer. This is a matter which a jury must decide upon a consideration of all the evidence furnished by both parties. We express no opinion as to Avhether defendant [114]*114was negligent, since we have only the testimony on behalf of plaintiff before us.
Reversed and remanded.