Young v. Southern Pacific Co.

I dissent. Upon the former appeal I joined in the dissent on the ground that while the instructions on contributory negligence were erroneous, under the evidence the verdict might well have been based upon the doctrine of the last clear chance. To this conclusion I still adhere. I have not been able to convince myself that the former decision is susceptible of the interpretation put upon it by the majority opinion that it held, so as to become the law of the case, that the evidence was insufficient as matter of law to justify a verdict for the plaintiff under the doctrine of the last clear chance, although the law which would govern that issue on a retrial was declared. As I have this view, and as the evidence on the retrial is of the same general import as that on the first trial, I think it was sufficient to have gone to the jury.