#### MARY STRUNKS, Admx., v. SOUTHERN RAILWAY COMPANY et al.

(Filed 12 November, 1924.)

Appeal and Error — Second Appeal — Review—Supreme Court.

A party to an action may not have tbe decision of tbe Supreme Court again reviewed by it, upon a second appeal, upon tbe same state of facts, tbe former decisions having become tbe law of tbe case.

Appeal by defendants from Lane, J., at April Term, 1924, of GrUILEORD.

Civil action to recover damages for an alleged negligent injury, resulting in the death of plaintiff’s intestate. The action is one arising under the Federal Employers’ Liability Act, it being conceded on the trial that the defendant is a common carrier by railroad, engaged in interstate ■ commerce and that plaintiff’s intestate was employed by the defendant in such commerce at the time of his injury and death.

Issues of negligence, contributory negligence and damages were submitted to the jury and answered by them in favor of plaintiff. From the judgment rendered, defendants appeal.

B. G. Strudiüich and Adams & Adams for plaintiff.

Wilson & Frazier for defendant.

Stacy, J.

This case has been tried three times in the Superior Court, and this is the third appeal here. Our previous decisions are reported in 184 N. C., 582, and 187 N. C., 175.

On the first appeal a new trial was granted for error in the charge on the issue of damages; but, as the case was correctly tried on the question of the defendant’s liability, we restricted the new trial to the quantum of damages to be awarded. On the second appeal, a new trial was again granted for failure of the judge to admit evidence tending to show contributory negligence on the part of plaintiff’s intestate, it being competent under the Federal Employers’ Liability Act to plead and *568to show tbe contributory negligence of plaintiff’s intestate in diminution of damages, and tbe question of contributory negligence not having been settled on tbe first trial except under tbe single issue directed to tbe defendants’ negligence. Cobia v. R. R., ante,, 487.

On tbe present appeal, no error is assigned relating to tbe trial on tbe question of damages. Appellants say in their brief:

> “Frankness compels us to say that there is no question presented in this appeal upon which tbe court has not already passed in tbe former appeals, but we have deemed it necessary, in order that we might present tbe question involved (tbe action being under tbe Federal Employers’ Liability Act) to tbe Supreme Court of tbe United States for its decision, that we bring tbe ease again to tbe attention of this Court.”

We are not now permitted to review any question heretofore decided in tbe present case, as a party who loses in this Court may not have tbe case reheard by a second or third appeal. Holland v. R. R., 143 N. C., 435. Our former decisions have become tbe law of tbe case so far as tbe questions then presented and decided are concerned. Ray v. Vencer Co., ante, 414.

“A decision by tbe Supreme Court on a prior appeal constitutes tbe law of tbe case, both in subsequent proceedings in tbe trial court and on a subsequent appeal.” Harrington v. Rawls, 136 N. C., 65. To tbe same effect and’tenor are tbe following decisions: Nobles v. Davenport, 185 N. C., 162, Public Service Co. v. Power Co., 181 N. C., 356, Hospital v. R. R. 157 N. C., 460, Gerock v. Tel. Co., 147 N. C., 1, and others that might be cited.

Tbe judgment as entered will be upheld.

No error.