Ware v. Saufley

Opinion of the Court by Judge Clay Affirming. This is the second appeal of this case. The opinion on the former appeal may be found in 194 Ky. 53, 237 S. W. 1060, under the same title. The sole ground on which a reversal is asked is that the verdict is against the evidence. After the first trial, a new trial was asked on the same ground, but the alleged error was not called to the attention of this court, The evidence on the two trials is substantially .the same, and if the last verdict was flagrantly against the evidence, then, for a like reason, the first verdict was flagrantly against the evidence. It is. the settled rule in this state that where the pleadings and evidence are substantially the same, the opinion on the former appeal is the law of the case, and matters which might have been brought to the attention of the court, but were not, are concluded by the opinion. Nashville, C. & St. L. Ry. Co. v. Henry, 168 Ky. 453, 182 S. W. 651; Danville Light, Power & Traction Co. v. Baldwin, 186 Ky. 683, 217 S. W. 910; O’Flynn & Son v. Ebelhar, 185 Ky. 503, 222 S. W. 939. Judgment affirmed.