The defendant says in its brief that the following questions were involved: “Did the court err in not granting defendant’s motion for nonsuit at the close of plaintiff’s evidence, and at the close of all the evidence, and refusing to admit certain evidence?” Neither of defendant’s contentions can be sustained.
This case was first tried at the regular September, 1940, Civil Term of the Superior Court of Buncombe County, at which time, and after the close of plaintiff’s evidence, the action was dismissed by judgment *39of nonsuit. From such judgment, plaintiff appealed to tbe Supreme Court, and tbis Court, in its opinion and judgment rendered in February, 1941 (219 N. C., 163), reversed tbe lower court and beld tbat there was sufficient evidence of negligence on tbe part of tbe defendant proximately causing tbe death of plaintiff’s intestate, and tbat tbis question of negligence, together with tbe question of contributory negligence on tbe part of plaintiff’s intestate, should be submitted to a jury.
Thereafter, defendant filed a petition to rehear before this Court, which petition was, on 18 April, 1941, denied.
Defendant now comes again before tbis Court and .asks tbis Court to reverse the lower court and its prior decisions in the case and bold that tbe action should be dismissed as of judgment of nonsuit. This Court has repeatedly held that it is not permitted to review such a question when it has already been passed upon by this Court. Ray v. Veneer Co., 188 N. C., 414.
“A decision by the Supreme Court on a prior appeal constitutes tbe law of the case, both in subsequent proceedings in tbe trial court and on a subsequent appeal.” Robinson v. McAlhaney, 216 N. C., 674 (679).
The evidence excluded, which tbe defendant complains of, was incompetent.
In tbe judgment of the court below, we find
No error.