Fitzgerald v. City of Benton Harbor

132 Mich. 645 | Mich. | 1903

Grant, J.

A statement of this case, both as to the facts and the principles of law involved, is found in 126 Mich. 618 (86 N. W. 138). The case has been again tried, resulting in a verdict for the plaintiff, and it is again before us for review.

The learned counsel for the defendant do not point out wherein the record in the present case differs from that in the former, and make no claim that it does. A comparison of the briefs and records shows that they are substantially the same. Counsel argue the same points, substantially, that were argued before. We said in-the former case that it was “ a close one on its facts,” but held that there was evidence on the question of the negligence of the defendant and the contributory negligence of the plaintiff sufficient to justify its submission to the jury. The witnesses for the plaintiff were the same on both trials, and it is not claimed that any witness testified differently upon the second from what he did upon the first. Upon the former trial the court directed a verdict for the defendant when the plaintiff had rested her case. Upon the second trial the defendant introduced testimony to meet the case made by the plaintiff. Plaintiff, under the former decision, was entitled to have the case submitted to the jury upon her theory of the case, which we then held to be sufficient to warrant its submission to a jury. On all questions there decided that decision is the law of the case. It was submitted to the jury by the court in accordance with that decision, and we think correctly. There is no important' principle involved which requires an extended discussion.

The judgment is affirmed.

The other Justices concurred.