Taylor v. Pierce Bros.

• Decision Date: 26 February 1915
• Citation: 220 Mass. 254,107 N.E. 947
• Parties: TAYLOR et al. v. PIERCE BROS., Limited.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 254

107 N.E. 947

TAYLOR et al. v. PIERCE BROS., Limited.

Supreme Judicial Court of Massachusetts, Bristol.

February 26, 1915

COUNSEL

John W. Cummings, Charles

R Cummings, and James W. Nugent, all of Fall River, for plaintiffs.

Jennings & Brayton, of Fall River, for defendant.

OPINION

PIERCE J.

When this case was first tried by the superior court, the defendant at the close of the evidence requested a ruling that 'upon the whole evidence the plaintiff cannot recover.' The request was refused and the defendant duly excepted. Following a verdict for the plaintiff the question of law saved by the defendant came to this court. Taylor v. Pierce Brothers, 213 Mass. 247, 100 N.E. 361. The exception was sustained, the case was again tried with a jury in the superior court, and at the close of the evidence the defendant requested the judge to rule that 'upon the whole evidence the plaintiff cannot recover.' The judge refused so to rule, and the defendant duly excepted. After a verdict for the plaintiff, the defendant brings the question of law to this court.

The former adjudication of this court that the plaintiff was not in the exercise of due care necessarily followed a consideration of every fact and inference of fact to be found in or inferred from the whole evidence.

The conclusiveness of such a decision is not determined, nor is it enlarged, limited or circumscribed by the exposition of principles contained in the opinion, by the logic of immutable fact, or by the fallacies of induction. For that case it stands the rule and measure of right, binding on court and parties. 'It is the law of the case.' Snell v. Dwight, 121 Mass. 348, 349; Booth v Commonwealth, 7 Metc. 285; 3 Cyc. 395, et seq.

Upon a new trial, after a decision, no question is open upon the same or in substance the same evidence. The plaintiff, in order to get to the jury, must produce for their consideration evidence which, had it been produced at the former trial in addition to that offered, would have necessitated a different conclusion. Measured by this rule the plaintiff must fail.

The testimony bearing upon the decedent's due care heard at the second trial differed for the most part from that produced at the first trial in phraseology only. In substance it was the same. In addition two witnesses stated that they had heard two spinners, on two occasions, while speaking to the decedent, call him 'dope,' 'crazy,' and 'nuts.' What circumstances led to the use of such appellations does not appear. Whether...