This case was here on a former appeal from a judgment recovered by plaintiff. We reversed the judgment and remanded the cause on account of misconduct of plaintiff’s counsel in his argument to the jury. [141 Mo. App. 437.] The case was tried again resulting in a verdict and judgment for plaintiff in the sum of $3500'. Again defendant appealed and we are asked to reverse the judgment on the ground of error in the refusal of the court to give a peremptory instruction to the jury to return a verdict for the defendant.
*542A similar instruction .was considered in our former opinion and we lield that plaintiff had made out a case to go to the jury. Counsel for defendant attempt to excuse their second presentation of issues then definitely settled-on the ground of essential differences in the evidence adduced at the two trials. Special attention is called to the alleged absence from the present record of any evidence of a promise to repair the machine iii question and an assurance of safety on which plaintiff claims he relied. But we find in plaintiff’s testimony the same assertions with reference, to these issues, with the exception of some minor and nonessential differences as to details, that appeared in the former record. On the whole record we find the demurrer to the evidence raises the identical question we decided in the former opinion, and as we are satisfied with the views therein expressed, we see no occasion for disturbing the judgment.
Accordingly it is affirmed.
All concur.