In view of the number of times the defendants' witnesses were called upon to testify, more or less variance in their statements was to be expected. That there was such is admitted. This was discussed and the defendants' explanation given the jury in argument. The discussion thereof by plaintiff's counsel, to which exception was taken, was vigorous and emphatic, but there is nothing tending to show that he was or could have been understood to be testifying rather than arguing. The evidence all points in the opposite direction and the exception to the argument is overruled. Kambour v. Railroad, 77 N.H. 33, 52.
When the case was last before the court, the defendants raised the question whether negligence in the operation of the incoming train could be found from the evidence. It was said in the opinion (78 N.H. 539), "There was evidence that the train came in at what well might be found to be an excessive rate of speed, considering the danger to employees, and that a more efficient warning of its approach might and should have been given."
The instruction excepted, to, authorizing the jury to consider whether a signal by the whistle should have been given as the station was approached, was an application of the rule then announced. A question of law once decided is not reconsidered in the same case except upon a motion for rehearing. Seeton v. Dunbarton, 73 N.H. 134, 137; Olney v. Railroad,73 N.H. 85, 91. As was said in the case first cited, "This matter was fully considered in the former opinion; and the facts now presented, if not identical with those then before the court, are not so materially different as to require a modification or new discussion of the legal principles then announced." It now appears that the station whistle was blown at a point about a half mile below the station, a fact which did not appear at the former trial. But this does not alter the situation except by the introduction of an additional evidentiary fact to be taken into consideration by the jury on the question of care in the management of the incoming train. The question was what the engineer coming into the station at an excessive rate of speed ought to have done upon seeing the other train just on its departure. The station signal was required in all cases. Whether more should have been done in the special situation developed as the station was approached was for the jury.
Exceptions overruled.
PLUMMER, J., was absent: the others concurred. *Page 171