Williams v. Union Switch & Signal Co.

170 N.W. 145, 41 S.D. 245, 1918 S.D. LEXIS 195

Opinion

PO'LLEY, J.

This cause was before us on a former appeal and is reported in 37 S. D. 423, 158 N. W. 901. Upon a retrial of the case, the same pleadings were used and1 the evidence on behalf of both parties was practically identical with the evidence that was presented at the^ first trial. The case was submitted to tbe jury, with the result, that plaintiff had.a verdict. From the judgment entered upon said verdict and an order denying its •motion for new trial, defendant appeals.

[1] The propositions of law that are presented on this appeal are the -same that were presented upon the former appeal. Such propositions were all considered and fully determined' on that appeal. The' decision on that appeal then became the law of the case, and, the issues having been submitted to the jury upon conflicting evidence an-d under instructions of the court that are not questioned by appellant, the verdict of the jury is final.

There1 can be no other purpose in this appeal than to persuade 'this court to overrule itself on the same questions that -were determined on the former appeal. 'After a careful re-examination of these questions, we are unable to find any reason- for changing or receding from our former opinion.

[2] Ho-wever, -we -do not agree with respondent that the appeal is frivolous, and his motion to assess 10 per cent, of the amount of the judgment against appellant as costs is denied.

The judgment and -order appealed from are affirmed.

WHiITIN-G, P. J., and GATES, J., dissent for the reasons given in the -dissenting opinion upon the former appeal.