The following opinion was hied April 15, 1941:
On this appeal the appellant, Floyd L. Litzen, contends that the court erred (1) in submitting to the jury the question of assumption of risk as to lookout; (2) in refusing to give plaintiff's requested instruction regarding a guest’s assumption of his host’s negligent lookout; and also ■ (3) in entering judgment dismissing plaintiff’s complaint. On the other hand, the respondents, Alfred’Eggert and his insurer, contend that Litzen’s appeal is improper and must be dismissed; that his remedy if any is by mandamus; that the mandate upon the first appeal has become the law of the case and that the verdict is no longer open to question or attack. Respondents’ contentions must be sustained.
The first and the second errors assigned by appellant on this appeal are in relation to rulings during the course of the trial as to which Litzen could have had a review if he had noticed a motion for that purpose or taken a cross-appeal on the first appeal, instead of seeking then, as he did, to have this court affirm the order granting the new trial. Upon the determination of that appeal by the mandate reversing the order granting the new trial in each case and directing the entry of judgment upon the verdict as rendered, there was no longer open for consideration by the trial court any other question presented by the record which could have been litigated upon that appeal.
Tomberlin v. Chicago, St. P., M. & O. R. Co.
By the Court. — Appeal dismissed.
A motion for a rehearing was denied, with $25 costs, on June 12, 1941.