The sufficiency of the evidence to go to the jury on the issues of negligence and contributory negligence was not seriously challenged at the first trial. The case went back because of errors in the admission and exclusion of evidence. Not directly, but by implication the decision recognized the right of the plaintiff to have the jury pass on the issues involved. Of course, where the evidence is materially different at a second trial, the former ruling does not control, and does not become the law of the case. George v. R. R., 217 N.C. 684, 9 S.E. 2d 373.
At the trial now under review, the plaintiff testified: “As I approached the Garner automobile I was going east at approximately forty to forty-five miles per hour and I was on my side of the road. The'Garner car was coming from west. It was about eighteen inches across the line. The line I am talking about is the white center line. The collision occurred in my proper right-hand lane. I at no time got across the center line.” The plaintiff does not swear himself out of court. Rouse v. Peterson, 261 N.C. 600, 135 S.E. 2d 549; Pruett v. Inman, 252 N.C. 520, 114 S.E. 2d 360.
The defendant, with respect to the collision, testified “I don’t know anything about it. I don’t even know whether I was in the collision or not. I do know the day before the headlights were bad on the car. We ran around all Friday evening with them bad and didn’t fix them. We ran all Friday evening with them needing to be fixed.”
The plaintiff’s evidence required the jury to pass on the issues as to Olden Donnell Garner. Judge Gambill so ruled at the close of the plaintiff’s evidence; and again at the close of all the evidence. However, after the jury had deliberated an appreciable length of time without arriving at a verdict, Judge Gambill changed his mind, re*221called the jury, and entered the judgment of involuntary nonsuit. We are forced to conclude the evidence raised issues of fact which must be passed on by the jury. The court cannot decide them as matters of law. We regret to send this case back for another trial but find it necessary to do so as to Olden Donnell Garner for the reasons assigned. The nonsuit is affirmed as to Magdalene Hughes Garner.
As to Olden Donnell Garner — New trial.
Moore, J., not sitting.