ARK. FORT SMITH V. MCLEAN.. 491 •..:: FORT SMITH V. "MCLEAN. 4-3025
Opinion delivered May . 22, 1933. APPEAL AND ERROR—FORMER DECISION AS LAW • OF CASE.—The decision of this court on a prior apPeal holding that the evidence presented a question for the jury.was the law of the case on a second trial where the evidence was virtually the same. Appeal from Sebastian Circuit Court, Ft. Smith Dis-- trict ; J. Sam Wood, Judge; reverSed. George W Dodd, for appellant Cravens tO Cravens, for, appellee. • KIRBY, J. This is the. second appeal of this case, a sufficient statement of which appears in the former opinion in MeLeam V. Fort Smith, 185 Ark. 582, 48 S. W. (2d) 228. . The court directed a verdict in said cause, froth which the appeal was taken, and this court reversed and remanded with directions for a new trial on April 11, 1932. The facts developed upon this trial are virtually the same as were shown upon the first- trial, and were in sharp conflict as to whether the building was . a nuisance, and because that question was not submitted to the .jury the cause was reversed. • .- - Upon this trial upon virtually the same 'conflicting evidence, tha court refused —to snbmit the question to the jury of whether the building constituted a nuiance in fact or at common law which could be abated by the
city, submitthig only the question a damages for its destruction to the jury—in effect directing a verdict upon the. very question for which the cause was remanded in :the . first • appeal for determination by the jury—and, of . course, erred in . doing so, the former decision being the law of the •case. McLean v. Ft. Smith, supra. See also Murphy v. Cupp, 182 Ark. 334, 31 S. W. (2d) 396.: , The court erred in refusing to leave to the determination of the 'jury the ;question of .whether the . building constituted in fact a nuisance that the city could abate, the ordinance giving it no such right unless the building - was in fact a nuisance. For this error, the judgment must be reversed, and the cause remanded for a new trial. It is so ordered. •
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