
    Herring, Respondent, vs. E. I. Du Pont de Nemours Powder Company, Appellant.
    
      January 29
    
    February 18, 1913.
    
    
      Appeal: Law of the case: Decision on former appeal.
    
    A decision of this court on a former appeal, that the evidence was sufficient to carry the case to the jury upon all vital issues, is the law of the case and is binding when the same questions arise on a later appeal upon substantially the same evidence.
    Winslow, C. J., and Babnes, J., dissent as to this case.
    Appeal from a judgment of the circuit court for Douglas county: Frane A. Ross, Circuit Judge.
    
      Affirmed.
    
    Action for a personal injury. The case has been three times tried. The first trial resulted in a judgment of non-suit which was reversed on appeal. 139 Wis. 412,121 N. W. 170. The reversal was because of there being a fair basis in the evidence for a jury to find defendant guilty of want of ordinary care which proximately caused the injury and that defendant neither assumed the risk nor was guilty of contributory negligence. On the second trial there was a special verdict finding all the material issues in favor of the plaintiff. That was confirmed on motion for a new trial as regards there being conflicting reasonable inferences; but, it was thought the evidence so clearly preponderated.in defendant’s favor on some material questions that it should be afforded another opportunity to try the case. On the third trial, resulting in the judgment, now complained of, the jury again found the material issues in plaintiff’s favor. The nature of the case sufficiently appears in the report on the first appeal.
    For the appellant there were briefs by J. P. Laffey and A. W. McLeod, and oral argument by Mr. McLeod.
    
    For the respondent there was a brief by E. G. Alvord and Sanborn, Lamoreux & Pray, and oral argument by A. W. San-born.
    
   Mabshall, J.

The printed cases upon the several appeals satisfy us that the evidence upon the first and second trials was substantially the same as upon the last one. So the decisions before rule now as to the evidence being sufficient to carry the case to the jury on all vital issues. That is so elementary we need not illustrate by referring to any of the numerous instances where it has been applied. Therefore there is no other course to pursue now than to affirm the judgment. No question of any moment is pressed upon our attention which is not identical with or included within some question raised on the first appeal, and practically on the second as well, and decided against appellant. A question once decided in this court, right or wrong, becomes a rule for the case after it is no longer subject to review on appeal from the particular result reached and the circumstances in respect to the matter remain unchanged.

By the Court. — Judgment affirmed.

The following opinion was filed March 11, 1913:

■WiNSLow, C. J.

(dissenting'). It is very easy to say, as is said in the opinion of the court, that the decisions upon the former appeals in this- case control the present appeal and necessitate affirmance of tbis judgment. Tbis is indeed a very conclusive answer to tbe appellant’s contentions, if it be justified by tbe facts. I am sure that my brethren will not misunderstand me wben I say that I think it is not so justified. Certainly tbe appellant’s counsel made a lawyer-like argument to tbe contrary and, as it seems to me, an argument worthy of answer in tbe opinion of tbe court. If one of tbe functions of an opinion be to show that tbe appellant’s contentions are fallacious, the opinion of tbe court does not fill tbe requirement. To meet a serious argument by saying “it is not so” may put an end to tbe discussion, but will not convince or satisfy tbe mind.

By examination of the opinions upon tbe former appeals (139 Wis. 412, 121 N. W. 170, and 145 Wis. 521, 130 N. W. 454) it will be seen that tbe only one which has any bearing on tbe question now before us is tbe first one. That was an appeal from a judgment of nonsuit, and tbis court reversed tbe judgment, bolding (as I read tbe opinion) that there was evidence from which tbe jury might find (1) that the chock, by reason of a worn condition, was likely to fail of its purpose, and (2) that great care on the part of tbe co-employee, whose duty it was to adjust tbe chock, would probably have protected tbe plaintiff against injury; (3) that tbe absence of such care would be negligence of a fellow-servant, for which tbe master would not be responsible, but (4) still, if tbe accident resulted from both causes acting in conjunction, tbe master would still be liable, although without tbe negligence of tbe fellow-servant tbe accident would not have happened. In brief, tbe idea was that there was one element of. negligence on the part of tbe master .which tbe evidence tended to prove, namely, a worn condition of tbe chock; and that if tbe jury found tbis element to exist and found also its proximate causal relation to tbe accident there could be a verdict against tbe defendant, notwithstanding tbe fact that tbe negligence of a co-employee in failing to properly adjust tbe apparatus to wbicb tbe cbock was suspended (called tbe bridle) might have contributed to tbe happening of tbe accident.

Now if tbe evidence on tbe present trial were tbe same as on tbe first it would be settled that tbe question whether tbe cbock was defective from wear, and, if so, whether that defect bore a proximate causal relation to tbe accident, was for tbe jury, but as I read tbe record there was a substantial change in tbe state of tbe evidence.

Upon tbe various motions made after judgment, tbe circuit judge filed a written opinion in wbicb be says:

“It was agreed between tbe parties upon tbe trial that tbe spigot and plug were in proper condition, and that tbe cbock was not worn or in any sense out of condition, except that plaintiff claimed that tbe bridle bad been raised or slipped up on tbe rods supporting same so as to raise tbe cbock about one eighth of an inch from tbe top of tbe plug, and as to whether or not tbe alleged improper adjustment of tbe cbock upon the plug was tbe proximate cause of plaintiff’s injury.”

Turning to tbe bill of exceptions and examining the colloquy upon wbicb this statement is evidently based, it seems to me that it quite satisfactorily supports tbe circuit judge’s statement. It appears that during tbe examination of one of tbe witnesses tbe circuit judge asked tbe counsel for tbe plaintiff whether they claimed that tbe cbock was defective in shape or improperly adjusted. Mr. Lamoreux, one of plaintiff’s counsel, replied that it was imperfect as to its lower end in its form, shape, and location, so that it was necessary to do some other things,' — and at this point be was interrupted by Mr. Alvord, tbe leading counsel for plaintiff, who said, “It was too short.” Tbe colloquy then went on. Court: “Too short, you say — now if it were adjusted lower on tbe bridle it wouldn’t be too short?” Mr. Alvord: “No.” Court: “Is tbe defect that you claimed in tbe adjustment, or in tbe cbock itself?” Mr. Lamoreux: “It was in allowing it to remain in the condition where it was too short — to allow it to remain in the condition, with the knowledge of the man who had it directly in charge, and that it hadn’t been changed from the time the man was • injured.” Court: “You don’t claim any defect in the chock itself?” Mr. Al-vord: “It is perhaps worn on the lower part. I presume likely there was some wearing.” Mr. Lamoreux: “It didn’t do the work for which it was intended.” Court: “Not because the chock itself wasn’t built right, but because it was not adjusted properly to make it fit the spigot.” Mr. Lamo-reux: “Those questions are for the jury,-we think.” Court: “I asked the question in view of this offered testimony. Objection sustained.”

Further than this, the whole apparatus was sent to this court, including the identical chock and bridle, and the same was set up in the consultation room and conclusively proved, to my mind, that if the chock was properly adjusted so that its lower end hung in the proper relation to the plug the convex end thereof would necessarily fit into the concave top of the plug, and make any upward motion of the plug impossible.

To sum up, I think not only that the circuit judge drew the proper inference from the concessions of counsel, but I think that the apparatus itself demonstrates that no other conclusion was possible, and hence that the accident happened either by reason of the plaintiff’s own act in moving the chock himself in order to operate the plug, or by reason of the neglect of the fellow-servant whose duty it was to properly adjust the bridle. In either case there would be no liability on the part of the defendant.

BabNES, J. I concur in the foregoing dissenting opinion of the Chief Justice.  