#### ROBERTSON WALL, Administrator of the Estate of LUCY E. PLYMPTON, Deceased, v. THE CITY OF ASHEVILLE, a Municipal Corporation.

(Filed 17 September, 1941.)

Appeal and Error § 49a—

Where, upon a former appeal, it is determined by the Supreme Court that the questions of negligence and contributory negligence were for the determination of the jury upon the evidence and that the judgment of nonsuit should be reversed, the decision becomes the law of the case and upon defendant’s appeal from subsequent judgment in plaintiff’s favor the Supreme Court cannot consider defendant’s contention that its motion for judgment as of nonsuit should have been allowed upon the second trial.

Appeal by defendant from Gwyn, J., and a jury, at July Term, 1941, of BuNcombe.

No error.

This was an action for actionable negligence, alleging damage, brought by plaintiff against defendant.

The issues submitted to the jury, and their answers thereto, were as follows:

“1. Was the plaintiff's intestate injured and killed by the negligence of the defendant, as alleged in the complaint? Answer: ‘Yes.’

“2. If so, did the plaintiff’s intestate, by her own negligence, contribute to her injury and death, as alleged in the answer ? Answer: No.’

“3. What damages, if any, is the plaintiff entitled to recover? Answer: ‘$5,000.00.’ ”

Judgment was rendered on the verdict, as follows: “Now, therefore, it is ordered, adjudged and decreed that plaintiff have and recover of the defendant the sum of Five Thousand ($5,000.00) Hollars.” Defendant excepted, assigned error and appealed to the Supreme Court.

Harlcins, Van Winlcle & Walton for plaintiff.

Philip C. Coche, Jr., and 8. G. Bernard for defendant.

Pee Curiam.

The defendant says in its brief that the following questions were involved: “Did the court err in not granting defendant’s motion for nonsuit at the close of plaintiff’s evidence, and at the close of all the evidence, and refusing to admit certain evidence?” Neither of defendant’s contentions can be sustained.

This case was first tried at the regular September, 1940, Civil Term of the Superior Court of Buncombe County, at which time, and after the close of plaintiff’s evidence, the action was dismissed by judgment *39of nonsuit. From such judgment, plaintiff appealed to tbe Supreme Court, and tbis Court, in its opinion and judgment rendered in February, 1941 (219 N. C., 163), reversed tbe lower court and beld tbat there was sufficient evidence of negligence on tbe part of tbe defendant proximately causing tbe death of plaintiff’s intestate, and tbat tbis question of negligence, together with tbe question of contributory negligence on tbe part of plaintiff’s intestate, should be submitted to a jury.

Thereafter, defendant filed a petition to rehear before this Court, which petition was, on 18 April, 1941, denied.

Defendant now comes again before tbis Court and .asks tbis Court to reverse the lower court and its prior decisions in the case and bold that tbe action should be dismissed as of judgment of nonsuit. This Court has repeatedly held that it is not permitted to review such a question when it has already been passed upon by this Court. Ray v. Veneer Co., 188 N. C., 414.

“A decision by the Supreme Court on a prior appeal constitutes tbe law of the case, both in subsequent proceedings in tbe trial court and on a subsequent appeal.” Robinson v. McAlhaney, 216 N. C., 674 (679).

The evidence excluded, which tbe defendant complains of, was incompetent.

In tbe judgment of the court below, we find

No error.