
    No. 825
    HOCK. VALLEY RY. CO. v. ROSE, Admr.
    No. 19958.
    Supreme Court
    On motion to certify.
    Dock. July 7, 1926;
    4 Abs. 475.
    941. PRACTICE & PROCEDURE — Where a Court or Appeals reverses a judgment of a Common Pleas Court and remands the case for retrial, which judgment is favorable to the original defendant and said original defendant does not take the case to the Supreme Court is the law as laid down by the Court of Appears rinal?
    Attorneys — Wilson & Rector, F. C. Amos, Ooiumhus, ana a. C. Johnston, Gallipolis, ior company; K. ivi. Sweetzer, Gallipolis, ior xtose.
   This action was brought originally in the Gallia Common Pleas by W. M. Rose, administrator against the Hocking Valley Railway Company ior damages resulting from the alleged wrongful death of the deceased.

It appears that the decedent was killed by being- struck by a locomotive of the Company while said decedent was crossing the tracks ox said company. The company m its answer set up contributory negligence.

The judgment of the Common Pleas in favor of the administrator was reversed by tne Court of Appeals tor errors in the charge anu upon letriai the judgment oi the Common Pleas in favor of the administrator was affirmed by the Court of Appeals on the ground tnac "Tne pronouncement of tins court upon tne former nearing has become the ‘law of the case', and neither this court nor the Supreme court has any authority to set it aside." The Company in the Supreme Court concends:

1. That “the law of the case” is not applicauie because the company succeeded m the Court ox Appeals ana had no grounds upon which to take the case to the Supreme Court.

2. The court erred in its charge to the jury.  