SMITH v. TEXAS & P. RY. CO., 81 F. 1007

McCORMICK, Circuit Judge. This case was before us at a former term. It is fully stated in the report of our decision then rendered. 30 U. S. App. 176, 14 C. C. A. 509, and 67 Fed. 524. It is very similar, in its issues of fact and law, to the case of Railway Co. v. Minnick, decided by this court, and reported in 23 U. S. App. 310, 10 C. C. A. 1, and 61 Fed. 635, on the authority of which, in part, our former decision in this case was made to rest.

Upon a full consideration of the case when it was before us at the former term, the court were unanimous in reversing the judgment of the circuit court, and a majority of this court held that on the ease then shown by the record the general Charge for the defendant should have been given in the court below; and the judgment below was reversed, and the cause remanded for proceedings in accordance with the views expressed in the opinion.

Wiien the case came on for trial again in the circuit court the pleadings and the proof offered were substantially the same as at the first trial, and the judge of the circuit court, in accordance with the views of this court, gave to the jury the general charge to find their verdict for the defendant; and on the verdict returned in compliance with the charge the court rendered judgment that the plaintiff take nothing, and that the defendant go hence with its costs. To review this judgment this writ of error is prosecuted.

On the authority of our former decision in this case, we must hold that the judge of the circuit court did not pit in directing a.verdict for the defendant. We therefore conclude and decide that the judgment of the circuit court should be, and is hereby, affirmed.