Syracuse Portrait Co. v. Ft. Smith & Western Ry. Co.

LESTER, C. J. The primary facts in this case are set forth in the opinion of this court on a former appeal of said cause. See Fort Smith & Western Ry. Co. v. Syracuse Portrait Co., 117 Okla. 113, 245 Pac. 600. Therein the cause was reversed, and upon trial anew the court instructed a verdict for the defendant. The plaintiff on second appeal urges, first, that the former opinion of this court was erroneous; and second, that on retrial of said cause the plaintiff was entitled to have the question of negligence of the defendant submitted to the jury. On the first proposition this court in the case of Corbin v. Bucy, 133 Okla. 193, 271 Pac. 948, stated the rule to be: “Upon successive appeals of same case to (his court, the law as determined and stated by this court upon the legal questions presented on each appeal becomes, and is, the law of the ease on those questions in all subsequent proceedings, either in the trial court or in this court, and where the facts are practically without dispute and substantially the same on each successive appeal, this court, upon the instant appeal, will not re-examine such questions as .were formerly determined, but will consider only such questions as were reserved in the former decisions and those which are newly presented.” A careful examination of the evidence upon the part of the plaintiff relating to the negligence of the defendant fails to show any facts or circumstances therein sufficient to have justified the court in submitting to the jury the question of negligence of the defendant as bailee. Judgment is affirmed. CLARK, Y. O. J., and RILEY, HEFNER, CULLISON, SWINDALL, ANDREWS, and McNEILL, J.J., concur. KORNEGAY, J., absent.