106 Wis. 239 | Wis. | 1900
1. The rules of law set forth in the former consideration of the events on which recovery is predicated, and the conclusion drawn therefrom, must control this case in so far as there is substantial identity in the material facts. This not upon the ground of res adjudicada, (Selleck v. Janesville, 104 Wis. 570), but of stare decisis.
The narrative of events on which liability was predicated in the former case need not be repeated here, except so far as may become necessary for comparison. Here, as there, there was not only no direct evidence of any negligence on the part of the defendant, but there was the direct evidence of the motorman of the exercise of all usual diligence to avoid the accident after peril thereof became apparent. As in the former case, also, there was no evidence, even sug
Some stress is laid by appellant’s counsel on the fact that the evidence now discloses that Mrs. Cawley’s buggy was struck on the inside of the left hind wheel, marks of the collision being there apparent. Of this the only significance is to establish that the buggy had completely gotten onto the track before the collision. This is not in any respect different from the situation on the former trial, where Bixby testified that the left hind wheel of the buggy was between the two tracks when struck, and is in no wise inconsistent with the view taken on the former trial, and above outlined on this.
On the same grounds, therefore, which led this court to the view before that no case was presented for submission to the jury, we reach the conclusion that upon the trial now under consideration the court was right in directing a verdict for the defendant.
By the Oourt. — -Judgment affirmed.