Williаm Blackwell, employed by a construction company building a flood wall in Newport, was electrocuted by a high tension wire of the appellant, The Union Light, Heat & Power Company. We reversed a judgment rendered on a verdict for. the defendant in an action for his death in Blackwell’s Adm’r v. Union Light, Heat & Power Co., Ky.,
The facts are fully related in the first opinion. In brief, they are that the high tension wires ran over a street and place where construction work was to be done. It appeared that the presence of the wires would interfere with the construction work, and at the contractor’s instance the Union Company relocated the wires and ran them above a vacant lot on the other side of the street. The contractor expected to use the lot for the storage of material and equipment. The wires, of 13,500 voltage, were run 36 feet above the ground.
The deceased, Blackwell, was in the act of attaching a cable suspended from the end of a 55 foot crane boom to a metal bucket, which seems to have been directly beneath the wires, when he was electrocuted. Some lumber on the ground was to be moved into the street by the crane. The crane operator, who was the only eyewitness, testified on both trials that the deceased had looked up at the wires as he went about this job and had attempted to keep a safe distance from them and did not bring the cable closer than six or eight feet to thе wires, but, nevertheless, was electrocuted, the inference from his testimony being the electricity had “jumped” from the wires to the cable to which the bucket was attached.
As stated in the first opinion, “the most difficult question” was whether or not the ' defendant was guilty of negligence per se in failing to observe the provisions of a city ordinance which required insulation of all electric wires. Our attеntion was devoted primarily to that point. We stated that there was sufficient evidence to take the question of the defendant’s negligence to the jury because of the conflict of opinion testimony concerning the safety and practicability of insulating the wires and the fact they were maintained in close proximity to the lot where deceased and other employees of the construction company were required to work. We find substantially the same conflict in expert opinions in the present record.
In the course of the opinion reference was made to the testimony of the construction company’s engineer that he had informed Union’s engineer that the vacant lot would not be used in connection with the work. This, however, was regarded as not important because, as a matter of fact, the lot had been used for storage purposes for several weeks before the accident and Union’s agent either knew or should have known that, fact. The instruction which we prepared for another trial of the case stated the defendant’s duty with respect to insulating or protecting the wires “so as to make them free frоm danger to those who might be brought in contact with same while performing such work as could reasonably have been, anticipated by the defendant.”
The character of the use of the vacant lot and the knowledge thereof by the defendant have become of controlling importance.
It is well proven that defendant’s agents were told the reason the construction cоmpany wanted the wires relocated was that they would interfere with the work to be done on the street and on a lot over which the wires ran and that a crane with a boom would be used there. Kircher, the defendant’s engineer, testified that Allen, the contractor’s manager, had told him that would be the only place he would use the equipment, and that he never had any knowledge of the use оf the crane or other *541 machinery on the so-called vacant lot. He was at the place only once thereafter and that was about the time the work was begun. Three months elapsed before the accident occurred. Allen testified that this vacant lot had been used for the storage of small tools such as pumps, wheelbarrows and the - like, some of which' were plаced under the wires. Wright, the crane operator; -testified that lumber had been stored there from the beginning of the-job, and he had moved things off the lot with the crane “three or four weeks or a month”previously. This is the strongest evidence in behalf of the plaintiff to show the use of the crane on the lot. But Wright’s testimony on this point is by no means definite as to the particular lot he referred to, and Allen’s testimony indicates he must have had reference to the work on the project at other places and not on this particular lot.
Foresight or reasonable anticipation is the standard of diligence, and precaution a duty where there is reason for apprehension of danger. Even where such a dangerous instrumentality as a highly charged electric wire is involved, with the cоnsequent imposition of the highest degree of responsibility, liability for harm is grounded upon negligence and not insurance. All the evidence in this case shows there was no reason for the power company to apprehend that a crane with a long boom would be used on the vacant or storage lot above which it had placed its wires nor, as we have said, was there any evidence that the company knew it was there before the accident. Knowledge of the use for the storage of lumber was knowledge of a use which did not create danger from the electric wires. There was no duty to keep this lot under inspection. We do not regard evidence in this case as showing no--tice, actual or constructive, of any dangerous use of the lot.
It seems to us the case is .controlled by Kentucky & West Virginia Power Co. v. Adams, Ky.,
We stated in the first opinion that notice had been given the defendant that the vacant lot was to be used “for storage” of material and equipment; and since the lot “was actually used for storage purposes for several weeks before the accidеnt”, the defendant’s agents “either knew or should have known of that fact.” [
As stated, on the former appeal the mind of this court was centered upon the novel and controversial question as to the effect of a city ordinance which required insulation of all electric wires without distinction between those of low tension and those of extremely high power. Not much attention was givеn to the question of notice of the use of the crane on the storage lot where the accident occurred. The instruction prepared for the second trial included as a condition to the right of the plaintiff to recover damages that the decedent “was performing such work [at the time and place] as could reasonably have been anticipated by the defendant.” By a critical comparison of the two records we find the evidence of constructive notice of the use of the crane on the lot, above which the defendant had strung its wires, to be substantially the same. But it does not show any negligence on the part of the defendant.
*542 The appellee strongly relies on the law of the case rule and insists that this court settled the question of sufficiency of the evidence to go to the jury upon the second trial.
It is an iron rule, universally recognized, that an opinion or decision of an appellate court in the same cause is the law of the case for a subsequent trial or appeal however erroneous the . opinion or decision may have been. Perhaps no court has been as consistent as this court in strictly adhering to the doctrine. We have made no express exception where it appeared the issues and facts were substantially the same on subsequent trials and appeals. We have an unbroken line of innumerable cases. However, some of our opinions in which the rule was not applied reflect the straining of the court to find the evidence was different.
The law of the case rule is a salutory rule, grounded on convenience, experience and reason. It has been often said that it would be intolerable if matters once litigated and determined finally could be re-litigated between the same parties, for otherwise litigation would be interminable and a judgment supposed to finally settle the rights of the parties would be only a starting point fоr new litigation. Thompson v. Louisville Banking Co., Ky.,
Notwithstanding the firmness of this rule in general, a number of courts have maintained and held that the rule is not inflexible but is subject to exception, although the exception must be rare and the former decision must appear to be clearly and palpably erroneous. In such a case it is deemed to be the duty of the court to admit its error rather than to sаnction an unjust result and “deny to litigants or ourselves the right and duty of correcting an error merely because of what we may be later convinced was merely our ipse dixit in a prior ruling in the same case.” McGovern v. Kraus,
The Missouri Supreme Court, in Mangold v. Bacon,
“But there are exceptions to the rule as well recognized as the rule itself. Those exceptions evidence a flexibility adjusting the rule to needs of refined justice by the exercise of a high and discriminating judicial power. ⅜ * ⅜ Whether from grace or right when cogent and convincing reasons appear, such as lack of harmony with other decisions and where no injustice or hardship would flow from a change, or where by inadvertence principles of law have been incorrectly declared the first time, or mistake of fact has been made, or injustice to the rights of parties would be done by adhering to the first opinion, then the exceptions to the rule have play, and it is our duty to re-examine and correct our own errors on the second appeal in the same case.”
In a later case, Murphy v. Barron,
Another well-considered opinion is Jоhnson v. Cadillac Motor Car Co.,
■ A number of other courts have reached the same conclusion in recognizing that the administration of justice requires some flexibility in the rule and that an appellate court not only has power to reconsider a former decision but should depart from it in unusual circumstances. A long list of cases are cited in support of the text to that effect.in 5 C.J.S., Appeal and Error, §§ 1824, 182S. Many conditions held to have justified qualification and departure from the strict application of the rule are catalogued in Annotations,
The court should look to the effect of its own error rather than merely acknowledge that error was committed and let it go at that. It should wipe out the effect of the mistake in the first opinion rather than perpetuate the error which would otherwise result in great wrong to the litigant and establish a bad precedent. That is essential justice.
■ The appellee submits that as strictly an appellate court, this court has no power to review its own final decision where the mandate has issued and the term ended. Now and then expressions to this effect may be found in our opinions in applying the law of the case rule or where the conditions did not involve consideration in a subsequent appeаl of a grave error in the case. The argument is essentially the argument of res judicata. The law of the case doctrine is similar and analogous to but is not identical with the doctrine of res judicata. 5 C.J.S., Appeal and Error, § 1822. There is, however, minority authority for the res judicata concept. Note
With reference to the use of the strong term, “res judicata,” in connection with the general rule, the late well-known Judge Lаmm, writing for the court in Mangold v. Bacon, supra,
In Southern Ry. Co. v. Clift,
Where a case is presently before an appellate court after a second trial, its review and disposition is with resjiect to . error committed on that trial — not on the first trial, whidi was before the court on the first appeal. It is not in point to say, in effect, that we are reviewing or modifying a judgment in a case in which the mandate has issued and over which we have lost jurisdiction. The court is not assuming to reopen a final adjudication of a case. Although this is the same action, the first judgment was not affirmed and the litigation was not ended. The reversal was for error relating to the duty of the defendant to insulate its wirеs at the point of the accident and the instruction on that issue. The case was tried de novo. The trial court properly followed the first opinion and was led into error by the quite inadvertent error of this court in holding there was sufficient evidence of negligence in having its wires where they we'r'e to submit the case to the jury. In deciding the present appeal, we l reach the conclusion that the judgment should be reversed since no negligence of the defendant was proven because there was no duty to anticipate the use of the crane beneath the relocated wires. The immediate question in the case now at bar is the consideration and effect to be given the former opinion and decision. All courts of last resort occasionally exercise the natural right to change their minds and find it proper and just to overrule and thus correct their former declarations of legal principles, notwithstanding the rule of stare decisis. That, it may be observed, is a rule similar to the law of the case rule but less forceful and subject to looser adherence. See Daniel’s Adm’r v. Hoofnel,
We think the present case meets the test of qualification of the law of -the case rúle. We conclude that the evidence in the record now before us did not authorize a submission to the jury of any question of negligence on the part of the defendant. We .are constrained to admit our own error in holding it was sufficient on the first trial and that as an exception to the law of the case rule, to overrule the former opinion to the extent that it so holds.
Upon another trial, if there be no more evidence to establish actual or constructive notice and knowledge of the defendant company as to the use of the crane at the time and place where the accident occurred than was introduced on this trial, the court should direct a verdict for the defendant.
Judgment reversed.