CONCURRING OPINION OP
WATSON, J.I concur in the conclusion arrived at by the majority that the judgment should be affirmed with costs to plaintiff (defendant in error).
Touching the question of the proximate cause of plaintiff’s *505injury and the propriety of the trial court’s action in submitting this issue to the jury, whatever my views might be upon this question as an original proposition, I am of the opinion that the decision of this court on the former writ of error (ante, p. 66), where the same question was considered and decided, became the law of the case and is not now open for re-examination. On the former hearing the position of this court on the question of proximate cause is expressed in the syllabus as follows:
“The defendant having negligently continued the use of a defective cable on its coal conveyor which, by reason of its defective condition, came off certain pulleys designed to hold it in position, and the plaintiff, an employee of the defendant on the conveyor, in attempting to restore the cable to its proper position was injured. The question, whether the proximate cause of the plaintiff’s injury was the negligence of the defendant in failing to furnish a reasonably safe cable for use, is not a question of science or legal knowledge, but a question of fact for determination by a jury.”
From this it appears that the court expressly held that the plaintiff’s evidence bearing on the question of proximate cause (which evidence wras substantially the same on the second trial) was sufficient to carry the case to the jury, and in my opinion it must now be held that the conclusion arrived at then must be the law in this case. What was there decided is not now open for discussion and must, be held to be res adjudicaba. In my opinion this question involved the only substantial defense relied on by the defendant, and unless the court has committed error in the instructions or has admitted or rejected evidence which was prejudicial to the defendant’s case the judgment will have to be affirmed.
Counsel for plaintiff in error strongly urge that the former ruling of this court on the question of proximate cause may and should be re-examined on this second writ of error, and, conceding that the view contended for by them is that adopted by the minority of the state courts, cite the case of Hastings v. Foxworthy, 45 Neb. 616, 34 L. R. A. 321, decided by the supreme *506court of Nebraska in 1895, as holding that an appellate court on a second appeal may and should examine and reverse its rulings made on the first appeal when the opinion first expressed is manifestly incorrect. I am of the opinion that the Foxworthy ease is of little value as an authority in considering the case at bar. In that case (34 L. R. A. 335) the court distinctly states:
“So far as any express decision or actual consideration of the question is concerned, it has never arisen in this case, and following the decision in * * * the question must be solved in favor of the contention of the city unless by implication it has formerly been otherwise resolved in this case, and unless, further, the court is bound by such implied decision so far as this case is concerned.” 1
Again, on page 336, it is said: “The court may be said to have already three times impliedly decided the question now before us * * * although on no occasion was that question, in fact, considered or actually decided
In the case at bar the question sought to be re-examined has been considered and expressly decided. If not expressly overruled, the doctrine laid down in the Foxwrothy case seems to have been abandoned or repudiated by the supreme court of Nebraska. In the case of Smith v. Neufeld, 61 Neb. 699, decided by the supreme court of Nebraska in 1901, the court, in discussing the doctrine of law of the case, on page 701, says:
“Following an almost unbroken line of authorities in other jurisdictions this court in a number of early cases held that when a question in controversy has been once squarely decided, the decision, if acquiesced in, or if not recalled, becomes the law of the case and is binding upon the parties and those claiming through or under them in all subsequent stages of litigation. This doctrine was, it is true, challenged as harsh and unjust in City of Hastings v. Foxworthy, 45 Neb. 676, but it has been reiterated and reaffirmed in many cases since decided and may now be regarded as firmly established in the jurisprudence of this state.”
On all of the other questions involved in this second writ of error and discussed in the foregoing opinion I concur with the majority in their reasoning and conclusions.