
    No. 514
    BIERMACHER v. N. Y. C. & ST. L. R. R. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5738.
    Decided May 8, 1925.
    211. CAUSE OF ACTION—Presumed, that where a cause has gone to the Supreme Court and there has been a reversal of both lower courts; and the Supreme Court remanded said cause for a new trial to the Common Pleas, that there is stated in the petition a cause of action sufficient in law.
    Attorneys—Anderson & Lamb, for Biermacher; Tolies, Hogsett, Ginn & Morely, for company; all of Cleveland.
   WILLIAMS, J.

Christian Biermacher brought an action against the New York, Chicago & St. Louis R. R. Co. in the Cuyahoga Common Pleas for damages by reason of having been severely injured by the alleged negligence of an employe of the railroad in permitting a pipe to fall on the tracks which resulted in the derailing of a gasoline motor car upon which Biermacher was working and which caused the injuries complained of.

At the conclusion of the opening statement of counsel for Biermacher the Railroad Co. moved that the court direct a verdict in its favor. The motion was sustained and Bier-macher then prosecuted error to the Court of Appeals which held:

1. This cause had been previously tried in the Common Pleas and a judgment for Bier-macher had been rendered for $18,000. This was affirmed by the Court of Appeals. The Supreme Co,urt reversed both judgments and sent the cause to the Common Pleas for a new trial.

2. It is significant that the Supreme Court did. not enter the final judgment in the cause although under the circumstances it had power to do so, but remanded it for a new trial.

8. The company contended that the Common Pleas did not err in sustaining its motion, because the petition did not state a cause of action. The petition is sufficient in law and we are of the opinion that the Supreme Court would not háve remanded the case for retrial had it deemed the petition insufficient in law. Judgment reversed.  