#### ELVIRA FUQUAY, Administratrix of JOHN FUQUAY, Deceased, v. ATLANTIC AND WESTERN RAILROAD COMPANY.

(Filed 4 November, 1931.)

Appeal and Error L c — Held: Supremo Court passed upon sufficiency of evidence on former appeal and will not again pass on this question.

Where, upon an appeal by the plaintiff from a judgment sustaining a demurrer on the ground that the plaintiff was estopped from bringing the action, the Supreme Court reverses the judgment, and upon the defendant’s request, also passes upon the sufficiency of the evidence to sustain the cause of action, and holds the evidence sufficient, upon a subsequent appeal by the defendant the Court will not again consider the question of the sufficiency of the evidence, the question having been decided upon the former appeal.

Appeal by defendant from *Lyon, Emergency Judge,*at January Term, 1931, of Lee.

No error.

This is an action to recover damages resulting from personal injuries sustained by plaintiff’s intestate while he was at work as an employee of the defendant.

On 28 January, 1929, John Euquay, plaintiff’s intestate, and Ellis Nordan, both employees of the defendant, were loading cross-ties on a flat car standing on defendant’s tracks near the town of Lillington, N. O. They were using certain appliances furnished them by the defendant to enable them to load the cross-ties on the car, known as “ramps.” As they were loading a crooked cross-tie on the flat car by means of the “ramps,” the cross-tie suddenly turned and struck plaintiff’s intestate, inflicting on his person serious and permanent injuries. As the result of these injuries, plaintiff’s intestate suffered damages.

*576It is alleged in tbe complaint tbat tbe “ramps” furnished by defendant and used by plaintiff’s intestate and bis fellow-employee in loading tbe cross-ties on tbe flat car, were defective; tbat defendant was negligent in furnishing to plaintiff’s intestate, to enable him and bis fellow-employee to load tbe cross-ties on tbe flat car, defective “ramps,” and tbat this negligence was tbe proximate cause of tbe injury sustained by plaintiff’s intestate. This allegation was denied in tbe answer filed by tbe defendant.

Tbe issues involving defendant’s liability to plaintiff were answered by tbe jury in accordance with tbe contentions of tbe plaintiff.

From judgment tbat plaintiff recover of tbe defendant tbe sum of $1,500, tbe damages assessed by tbe jury, tbe defendant appealed to tbe Supreme Court.

*A. A. McDonald and K. B. Hoyle for plaintiff.*

*Williams & Williams for defendant.*

CowNOB, J.

This action was first tried at July Term, 1930, of tbe Superior Court of Lee County. From tbe judgment at this trial,' dismissing tbe action as of nonsuit, plaintiff appealed to this Court. Tbe appeal was beard at Fall Term, 1930, when tbe judgment was reversed, and .the action remanded to tbe Superior Court for a new trial. *Fuquay v. JR. B.,*199 N. C., 499. Tbe question presented on said appeal was whether there was error in tbe judgment dismissing tbe action, as of nonsuit, on tbe ground tbat plaintiff was estopped from' maintaining this action, as contended by defendant. We held tbat there was error in dismissing tbe action on tbat ground. Tbe defendant contended tbat even if there was error in dismissing tbe judgment on tbe ground tbat plaintiff' was estopped from maintaining tbe action, this error was not prejudicial for tbe reason tbat tbe evidence offered at tbe trial was not sufficient to sustain tbe allegation of tbe complaint with respect to actionable negligence on tbe part of tbe defendant. At tbe request of tbe defendant, we considered this contention, and held tbat it could not be sustained. For this reason we remanded tbe action for a new trial. Manifestly, if tbe contention bad been sustained, notwithstanding tbe error in tbe judgment dismissing tbe action on tbe ground tbat plaintiff was estopped, we would not have remanded tbe action for a new trial, but would have affirmed tbe judgment of nonsuit.

Tbe evidence at tbe trial at January Term, 1931, as appears from tbe record in this appeal, is identical with tbe evidence at tbe trial at July Term, 1930. Tbe only question presented on this appeal from tbe judgment at January Term, 1931, is whether tbe evidence at said *577trial was sufficient to sustain tbe allegations of tbe complaint witb respect to tbe liability of defendant. Tbe question was answered, at tbe request of tbe defendant, on tbe former appeal, and will not be considered on tbis appeal. *Soles v. R. R.,*188 N. C., 825, 125 S. E., 24.

An examination of tbe evidence, however, seems to sustain tbe action of tbe trial court in refusing to allow defendant’s motion for judgment as of nonsuit. Tbe judgment is affirmed.

No error.