
    Louisville & Nashvlile Railroad Company v. Hamblen.
    (Decided February 16, 1926.)
    Appeal from Kenton Circuit Court.
    Appeal and Error—Opinion of Court of Appeals on Former Trial is Law of Case, where Evidence is Same in all Essential Particulars.—Where Court of Appeals reversed case on former appeal because of failure to peremptorily instruct jury, its opinion upon former trial is law- of the case where evidence was same in all essential particulars, and failure of trial court to observe its mandate was error.
    WOODWARD, WARFIELD & HOBSON, ASHBY M. WARREN and S. D. ROUSE for appellant.
    GRAZIANI & ROOT for appellee.
   Opinion of the Court by

Commissioner Sandidge

Reversing.

This is the second appeal of this case. The opinion rendered upon the former appeal may be found in 207 Ky., at page 356. The original appeal was from a judgment in favor of appellee against appellant for $2,750.00. As may be ascertained by reference to the former opinion the judgment was reversed because of the error of the trial court in not peremptorily instructing the jury to find for-appellant. The case has been retried in the court below, and, at the conclusion of the evidence for appellee and again at the conclusion of all the evidence, appellant moved tbe trial court under the former opinion to peremptorily instruct tbe jury to find for it. The motion was overruled and tbe question of appellant’s liability was again submitted to tbe jury, resulting’ in a verdict for $5,500.00. Judgment was thereupon entered and from it this appeal has been prosecuted.

It is insisted for appellant that tbe former opinion is tbe law of tbe case; that upon tbe second trial—that resulting in tbe judgment appealed from herein—tbe evidence was substantially the same as upon tbe first, and that tbe trial court erred in not sustaining its motion for a directed verdict. Tbe opinion of tbe trial court rendered in overruling appellant’s motion and grounds for a new trial hereof makes it appear that tbe court did not have access to a transcript of tbe testimony upon the former trial, but judged from tbe former opinion and tbe evidence upon tbe last trial that there was sufficient difference in tbe evidence beard upon tbe two trials to require a submission of tbe case to tbe jury. "We have carefully compared tbe evidence introduced for appellee upon tbe second trial and that introduced upon the first, and we find it to be in all essential particulars the same. Appellee and a crew of men were engaged in lifting a piece of timber prepared for use as a car sill which was 36 feet, long, 13 inches wide and 5 inches thick, and which weighed some 600 or 800 pounds. While so doing tbe piece of timber turned over and mashed appellee’s thumb. Liability for tbe resulting injury was sought to be fastened upon appellant because of what was said by tbe foreman in charg’e of tbe crew immediately before tbe accident. Tbe case turns upon that narrow question. We find that tbe witnesses upon the last trial attribute to tbe foreman of tbe crew not only in substance but almost in indentical language tbe same words spoken upon the occasion in question as were attributed to him by them upon tbe first trial hereof. They describe upon tbe last trial tbe circumstances and situations surrounding them at tbe time tbe foreman spoke as they testify be did exactly as they did upon tbe first trial. Analyzing tbe testimony for appellee upon tbe first trial in tbe light of the facts and circumstances surrounding tbe parties, this court held that what was said by tbe foreman could not be considered as a direction to tbe men engaged in lifting tbe timber from the ground to tbe trestles as to bow they should do it, but left them, shown to have been accustomed to doing tliat kind of work and to know liow it should be done, to select tbeir own method of raising the timber, but was merely the foreman’s effort to speed up the work as there was a hurry call for the car sills. The evidence upon the second trial as to the situation of the parties and what the foreman said being in almost the identical language of that upon the first and, certainly, in all essential particulars being the same, the opinion of this court upon the former trial is the law of the case and the trial court erroneously failed to observe its mandate at the close of the evidence upon the second trial hereof. A peremptory instruction to find for appellant should have been, awarded.

Wherefore, the judgment herein is reversed and this cause remanded for further proceedings consistent herewith.  