Opinion
Argued October 27, 1924 —
Decided October 29, 1924.
On appeal from a judgment for plaintiff against defendant in Hudson County Circuit Court, on a retrial pursuant to a per curiam of this court on review of a former judgment, as follows:
"This was an action in the Hudson County Circuit Court under the federal Employers' Liability act ( U.S. Comp. Stat., §§ 8657, 8665), for damages resulting from the death of plaintiff's intestate. There was a verdict and judgment for the plaintiff, from which judgment the defendant appealed to this court, where it was reversed with the award of a venire de novo. Foley v. New York, Ontario and Western Railway Co. ( Court of Errors and Appeals), 99 N.J.L. 500. That opinion made the law of this case, and on the retrial the granting of a motion to nonsuit was required, if there were no substantial variation in the testimony from that submitted on the previous trial; and there was not.
"When the plaintiff rested her case on the trial resulting in the judgment now under review, counsel for defendant moved for a nonsuit on the ground, among others, that she had not established the negligence causing the accident; and this was true in point of fact. In this posture it became the duty of the trial judge to grant the nonsuit applied for. Instead, he overruled the motion and allowed the case to go to the jury, resulting in a verdict for the plaintiff, as above stated. This was error, and requires reversal, with the award of another venire de novo.
"On the retrial under the venire de novo above awarded, the proof was identically the same as on the then last trial and called for a nonsuit, which was granted. From the judgment entered on the last trial (the one now under review) defendant appeals to this court."
For the appellant, Alexander Simpson.
For the respondent, Wall, Haight, Carey Hartpence.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion of this court above set out.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, BLACK, KATZENBACH, CAMPBELL, LLOYD, GARDNER, VAN BUSKIRK, CLARK, KAYS, JJ. 13.
For reversal — None.