Harris v. Central Power Co.

111 Neb. 565 | Neb. | 1924

Morrissey, C. J.

This case is before us on the second appeal. The issues are fully set forth in Harris v. Central Power Co., 109 Neb. 500. On the first trial the court directed a verdict in favor of defendant. Plaintiff appealed and the judgment was reversed. On the second trial the court, excepting in one particular which will be noted later, submitted the cause to the jury under the rules announced in the former opinion. From a verdict and judgment in favor of plaintiff, defendant appeals. ■

In an able brief, appellant presents the law which he conceives to be applicable to the case and earnestly insists that we again review the opinion heretofore written and announce a different rule. This we are unable to do. It has long been the settled rule that a question necessarily involved in the determination of a cause, presented by the record, and expressly decided will be held to be the law of the case during its future course of procedure, unless it is found to be manifestly wrong. First Nat. Bank v. Gibson, 74 Neb. 236. We are satisfied with the rule announced in our former opinion and it is held to be the law of the case.

One other matter is urged for our consideration. It is claimed that instruction No. 15 is inconsistent with instruction No. 17, and appellant says these two instructions cannot be reconciled. Perhaps this is true, but instruction No. 17 is a correct statement of the law as announced in our former opinion. If either instruction is erroneous it is instruction No. 15, and, if prejudicial to either party, it is prejudicial to plaintiff, who is not complaining. “An instruction given by a court to the trial jury, which, if wrong, could not have been prejudicial to the party' complaining, will not be examined upon a hearing on appeal.” Nichols & Shepard Co. v. Steinkraus, 83 Neb. 1.

The record is found free from error and the judgment is

Affirmed.