93 Ill. App. 294 | Ill. App. Ct. | 1901
delivered the opinion of the court.
This case was here once before upon appeal by the present defendant in error, and is reported, with the title reversed, in 67 Ill. App. 649, where the facts can be found.
It is conceded that the facts shown by the record in this case are essentially the same as they were in the record under review in the former appeal.
The judgment of this court in reversing and remanding the cause, on the determination of the former appeal, was that the judgment appealed from be reversed and that the cause “ be remanded to the Circuit Court of Cook County, for such other proceedings as to law and justice shall appertain.”
Undoubtedly under such a remanding order the case was open for a new trial and all necessary and proper incidents thereto. The judgment did not restrict or confine the parties or the trial court to any particular course to be observed on such new trial, but left them free in matters of pleading and evidence to adopt such a course as the law authorizes and as counsel learned in the law might advise.
The opinion of this court, however, established the law of the case as applied to the same pleadings and evidence that were in the case at the former trial, and might be looked at by the judge presiding at the last trial to ascertain what the law was held to be. Baker v. Hess, 53 Ill. App. 473.
So looking, the trial judge would have seen that this court held, under the pleadings and evidence in that record, which were substantially identical with the record now before us, there could be no recovery by plaintiff in erro*because of her contributory negligence.
It was therefore proper, and the duty of the trial court, to take the case from the jury by a peremptory instruction.
The argument of counsel for the plaintiff in error, that under the former judgment of this court she was entitled to have a jury pass upon the evidence irrespective of what our holdings were as to the effect of such evidence upon her rights as announced in our former opinion, can not be sustained. JSTo authority is known to us or has been referred to by counsel upholding such a view.
We have carefully examined the cases cited by counsel as showing that the case should have been submitted to the jury, but can not concede their effect to be as contended for.
The case being the same, in substance, as was formerly before us, the law is the same as it was then. We observe no questions that are argued on the evidence or rulings of the court that were not considered and passed upon on the former appeal, and the judgment must be affirmed.
