Appeal from the District Court of the United States for the Eastern District of New York.
Before AUGUSTUS N. HAND, CLARK, and FRANK, Circuit Judges.
1. This case was here on a previous appeal where we reversed a judgment, entered at the close of the testimony dismissing the complaint on the erroneous gorund that the evidence was insufficient to go to the jury. Perrone v. Pennsylvania R. Co., 2 Cir., 136 F.2d 941.So similar are the records on the two appeals that with one exception noted below, we need not discuss the evidence or the questions raised by defendant here which are virtually identical with those considered in our previous opinion. To be sure, that opinion, constituting the "law of the case," is not binding upon us, and we would be free to disregard it if, upon reconsideration, we felt that our previous conclusions were substantially wrong. *fn1 But, having read the briefs and the record here, we see no reason not to abide by our prior decision.
2. The following question, however, was not before us when we rendered that decision. On the first day of the trial, Brennan, a witness called by the plaintiff, testified that he had been working with plaintiff before and at the time of the accident. On direct examination, the following questions and answers were given:
"Q.When you saw men working on planks extending from the ladder over to the catenary wire during the two or three weeks prior to the accident do you know from your knowledge whether the current was on or off? A. I knew it was off.
"Q. From the fact that the plank rested on the catenary wire and thence over to the top of the ladder and men working on it you say you knew from that fact that the current was off? A. Yes, yes, because we would slide over on the plank to get to the different holes.
"Q. Did you know from the fact that the men were on the planks that extended from the catenary wire to the top of the ladder, did you know from that fact alone that the current was off? A. No. Personally I wasn't told about the juice being off."
On the second day of the trial, on cross-examination of Brennan, the following questions, answers and colloquies occurred:
"Q. Now, on the morning of this accident did you know whether or not the electricity was on the wire over track 18? Did you know whether it was on or off? A. I really didn't know.
"Q. Now, did you ever tell anyone that you knew it was on? A. No, sir.
"Q. You never made that statement to anyone? A. No, sir.
"Q. You never said that in writing or orally? A. No, sir.
"Q. Did you ever say to anyone that, 'The power was on at the time and we knew that because the train was ...