As I read the record, the conflict in evidence referred to in the majority opinion relates only to the negligence of the company. There is certainly no conflict as to the conduct of Kniseley, the driver of the truck. It is settled law that "the duty to look and listen before entering upon a railroad crossing requires the traveler to exercise care to select a position from which an effective observation can be made."Robertson v. Ry. Co., 99 W. Va. 356, 128 S.E. 829. Kniseley admits he did not exercise that care. He said that he stopped the truck "on the first switch rail" for "just a few seconds" but he "couldn't see for the box cars"; that he mentioned to his companions in the truck that it was time for the street car; that he then started slowly to cross the tracks and when he had advanced a few feet, the very street car which he was expecting struck the truck. This Court has held consistently that similar conduct constituted legal negligence.
In the case of Maynard, Admx. v. Ry. Co., 111 W. Va. 372, 373,162 S.E. 171, the plaintiff's decedent was also driving a truck. He also stopped the truck "just for an instant" upon a storage (switch) track. He also was unable to see an oncoming train "on account of box cars." He also then started across the tracks and was struck by the train. We held that he was negligent at law. In Robinson v. Ry. Co., 90 W. Va. 411,110 S.E. 870 (another case in which box cars inhibited the traveler's view) a like holding was made. Similar cases could be multiplied. If there is any legal difference in the material facts of the Maynard and Robinson cases and the instant case, I do not observe the difference.
The majority opinion states that the effect of our decision on the former writ of error was to hold that plaintiff was not contributorily negligent as a matter of law, and that such holding is the law of the case. On the first writ of error the defendant made twenty-one separate assignments of error. Several points of error were grouped in some of the assignments. Under assignment No. 15, six separate errors were charged, lettered A to F, inclusive. The charge under subdivision A related to the refusal of the trial court to give a peremptory instruction in favor of defendant. The contention under that subdivision was that the truck driver was negligent as a matter of law. By reference to page 583 of the former opinion (111 W. Va. 576, 163 S.E. 411) it will be seen that the case was reversed because of the instructions given and refused by the trial court on the very question of contributorynegligence. Those rulings were condemned en masse in these two sentences: "It was reversible error to give and refuse the instructions under consideration. Defendant has been deprived of a lawful defense." In the very next sentence, the opinion announced that "in view of the reversal on instructions" there were "many other points of error unnecessary to determine". In the remainder of the opinion several charges of error were discussed, and while some rulings of the trial court were disapproved, the opinion does not state that any of such rulings constituted reversible error.
So, we are confronted with this alternative: (1) the peremptory instruction (relating to the contributory negligence of the truck driver) was considered and its refusal was held to be error under the general statement in the opinion above quoted, to-wit, "It was reversible error * * * to refuse the instructions under consideration"; or (2) the peremptory instruction was not considered at all and was grouped with the "many other points of error" which the opinion stated would be "unnecessary to determine in view of the reversal on the (other) instructions". The position of the majority is untenable if the first proposition be accepted. If the second proposition (which is the more plausible) be accepted, then any inference that we did consider the peremptory instruction is excluded by the express statement quoted from the former opinion ("unnecessary to determine", etc.).
The majority opinion is reached solely through inference and argument. Yet the rule of "law of the case" should not be based on inference — "the precise question" must be "definitely and finally determined". Windon v. Stewart, 48 W. Va. 488,37 S.E. 603. True it is, that the court used the words res judicata in the Windon case. But the opinion, pp. 490-1 (of 48 W. Va.), shows that a former decision in the same case was invoked, and that the term res judicata was used as synonymous with the phrase law of the case. The latter doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided", and is "not a limit to their power." Honnold, Supreme Court Law, p. 1494. The doctrine of law of the case is "much more limited in its application than that of resjudicata". Alerding v. Allison, (Ind.) 83 N.E. 1006, 127 Am. St. Rep. 363, 368-9. The doctrine of law of the case "is weaker than res judicata." Justice Lummus, Boston University Law Review, November 1929 issue, page 225. So even if the former observations of this court should be taken as applying strictly to res judicata, for even stronger reasons should the observations apply also to law of the case. "Where the prior decision is limited by its express terms it will not be conclusive upon a second appeal except as to matters
within the limitation." Annotation 34 L.R.A. 346. Accord: Annotation 1 A.L.R. 730-1; Rowan v. Chenoweth, 55 W. Va. 325,47 S.E. 80; Ins. Co. v. Hill, 193 U.S. 551, 553-4,24 S. Ct. 538, 48 L. Ed. 788. Now we either passed on the peremptory instruction on the first writ of error or we did not pass on it. If we passed on it (as one of the group of instructions referred to), we held that its refusal was error. If we did not pass on it, then it is included in the group of points of error which we expressly stated were not passed upon. Under the above citations, the doctrine of law of the case has no application.
Our system of laws is a written system. The sole purpose of a written opinion is to record the law of the case. It would seem to follow that such law must of necessity be what is written in the opinion, not what is left unsaid. The manner in which courts generally regard this doctrine is expressed concisely by Mr. Black as follows: "Primarily, the effects of a decision as the law of the case is to be restricted to the propositions of law actually decided and applicable to the facts in judgment * * *. And in the usual case of a record on appeal which presents numerous assignments of error, some of which are expressly decided by the reviewing court, while others are either expressly reserved or left unnoticed, we apprehend that the conclusive effect of the decision as the law of the case must be rigorously limited to the specific points actually ruled and decided. Where, for instance, a supreme court concludes its opinion with the words so often found in the reports, 'we deem it unnecessary to consider the other assignments of error in this case, for the reason that the conclusions already reached require a reversal of the judgment below', it must be evident that there is nothing to prevent the party from again bringing forward those undertermined issues on a second appeal, or to prevent the appellate court from giving them consideration." Black's Law of Judicial Precedents, pp. 283-4.
The West Virginia court has not heretofore regarded the rule with such diffidence. In Wiggin v. Lbr. Co., 79 W. Va. 651, 656, 91 S.E. 532, and in Pennington v. Gillaspie,66 W. Va. 643, 66 S.E. 1009, this court "corrected" and disregarded former rulings in the very same cases. I am unable to ignore the decisions of our own court on this subject, supported as they are by the attitude of the authorities generally. Moreover, say we wronged the plaintiff in our former decision by not expressly passing on his right of recovery; to ignore the defense of contributory negligence now would be to wrong the defendant. Two wrongs will no more make a right in this case than in any other case. Hence my dissidence.