After remand of this cause from the Supreme Court of the United States, where our judgment for the defendant, upon the ground that defendant's motion for a directed verdict should have been granted (see 113 Vt. 8, 28 A.2d 639), was reversed, that Court being of the opinion that there was sufficient evidence to go to the jury on the question whether the defendant was negligent in failing to use reasonable care in furnishing plaintiff's intestate with a safe place to work, the defendant was given leave to further argue such of its exceptions as were not disposed of in our former opinion or inconsistent with the decision of that Court. At the hearing for such further argument our attention was called directly to the exceptions now relied upon, and all other exceptions were waived.
The defendant excepted to the reception in evidence of a Swaco safety hopper car wrench as an exhibit. It was objected to upon the grounds that the defendant was not obliged to furnish the latest, best or safest appliances, that the evidence was that the frog wrench furnished had done the work safely and adequately, and that there was testimony in the case that the Swaco wrench if improperly used would be dangerous. In our former opinion we held, in substance, that there was no evidence that the frog wrench *Page 435 was not reasonably safe and suitable for use in opening hopper cars and thus there was no evidence in the case, viewed most favorably for the plaintiff, to warrant the submission of the issue of failure to furnish proper tools to the jury. This holding was not disturbed by the Supreme Court and the defendant now urges that consequently the law of the case shows conclusively that the court erred in admitting the wrench as an exhibit. The defendant misconstrues the effect of the holding which goes no farther than to show error in the submission of the issue of failure to furnish proper tools. If the construction claimed by the defendant is to be accepted it would have the effect of requiring a trial court not only to correctly evaluate the result of the state of the evidence on any given issue before submitting the same to the jury but to anticipate correctly the final result from the very start of introduction of testimony on that issue. This is not and should not be the rule. The ruling here must be tested as of the time it was made and in view of the situation then confronting the trial court.
The wrench was offered near the close of the plaintiff's case after a discussion between the court and counsel as to evidence which had been introduced in regard to "the method of using it." It was received upon the strength of this evidence, especially that part of the same to the effect that in the use of this wrench the nut turns within it. As indicated in our former opinion, there had been considerable evidence introduced in regard to the use and operation of this wrench. Most of this evidence had come in without exception. The issue to which it pertained was whether the frog wrench was a reasonably proper tool to be furnished for the work under the circumstances disclosed. In view of this evidence and as having a relative bearing on this issue the jury were entitled to see and examine the ratchet wrench, and compare it with the frog wrench which had been admitted as an exhibit. The fact that there was evidence in the case to the effect that the Swaco wrench if improperly used was dangerous merely went to the weight to be given to it and did not affect its admissibility. Nor was the evidence to the effect that the frog wrench had been used to open hoppers safely and adequately in the past conclusive evidence that it was reasonably safe and suitable. Geno v. Fall Mountain Paper Co., 68 Vt. 568,35 A 475. The plaintiff did not claim that the defendant was obliged to furnish the latest, best or safest appliances or that the Swaco wrench was such. Although the facts are *Page 436 different, the principle is the same here as in Cole v. DanvilleCoop. Creamery Assn., 103 Vt. 32, 41, 42, 151 A 568. We hold there was no error in admitting the Swaco wrench as an exhibit. Moreover, if there had been error, it would have been rendered harmless by the introduction of the evidence without exception describing the wrench and its use. Ellison v. Colby, 110 Vt. 431,437, 8 A.2d 637; State v. Orlandi, 106 Vt. 165, 173, 170 A 908.
The defendant excepted to evidence of a section foreman that the defendant had to furnish a right of way under its tracks, and to evidence of the previous dumping of rocks upon the roadway below the bridge where the accident happened. In view of the amendment of August 11, 1939, to the Federal Employers' Liability Act, providing: "Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce * * * shall, for the purpose of this Act, be considered as being employed by such carrier in such commerce and shall be entitled to the benefits of this Act", it would seem to make no difference as to whether the defendant was under any duty to maintain the roadway below the dry bridge. The general duties of plaintiff's intestate as a section hand were in furtherance of interstate commerce, so whatever work he did for the defendant was covered by the Act. If any error was made here it was harmless.
Over the objection and exceptions of the defendant one of the section hands was permitted to testify that he heard someone say "We have got just five minutes to unload this car". He was unable to say who made the remark, and further testified that he did not see any hurry about unloading and that nobody was in any hurry. The defendant has not briefed the question as to whether, to make such a remark admissible upon the charge that insufficient time was allowed for this operation, it must be shown that it was made by someone in authority, and we do not consider it. If error, harm is not made to appear.
The defendant excepted to the failure of the court to charge as requested as follows: "If you find that this wrench which was used by Bailey had been used for many years to open hopper cars and that no one had ever been hurt by it, you must find that reasonably adequate tools had been furnished to this plaintiff's intestate, and that no negligence lies on the defendant with respect *Page 437 to the furnishing of improper tools". As the former opinion shows, the employer is under a duty to exercise ordinary care to supply appliances reasonably safe and suitable for the use of the employee, but is not required to furnish the latest, best and safest appliances, or to discard standard appliances upon discovery of later improvements, provided those in use are reasonably safe and suitable. The request is faulty in that the matters stated are only evidence that the wrench was reasonably safe and suitable. They are not conclusive. This is illustrated in Geno v. Fall Mountain Paper Co., 68 Vt. 568, 35 A 475. There the defendant contended that an employer is not obliged to furnish the best machinery, but only such machinery as is ordinarily used, but the Court at p. 576, 35 A 478, said "That a machine is in common use is at the most a circumstance bearing upon the question of negligence."
The defendant excepted to the failure of the court to charge as requested as follows: "Even though you find negligence on the part of this defendant, unless you find that such negligence was the proximate cause of the accident, the plaintiff cannot recover". This request was complied with.
The defendant excepted to the failure of the court to charge as requested as follows: "If you find that the reason for the accident was the improper use of the wrench by plaintiff's intestate, you must find for the defendant". The defendant in its brief construes this request as meaning that if the jury found the sole proximate cause of the accident was the negligent use of the wrench by Bailey there could be no recovery. We adopt this construction for the purpose of the treatment of this exception.
This request is defective in that it fails to point out with sufficient clearness the circumstances under which the jury could only properly find that Bailey's negligence in the use of the wrench, if they found that to be the fact, was the sole proximate cause of the accident. The trial court held there was sufficient evidence to go to the jury on the question whether the defendant was negligent in failing to use reasonable care in furnishing Bailey with a safe place to work. Thus the request to have been properly phrased should have had incorporated therein statements to the effect that in order to find that Bailey's negligence in the respect claimed was the sole proximate cause of the accident they must find that it, of itself, without regard to, and independent of, any negligence on the part of the defendant in respect to a safe place caused the accident. *Page 438 The request as worded would have tended to confuse rather than help the jury on this issue of sole proximate cause.
In addition, it is clear that the evidence in the case did not warrant the request and thus the failure to comply therewith was not error. State v. Corologos, 101 Vt. 300, 306, 143 A 284, 59 ALR 1541; Landry v. Hubert, 100 Vt. 268, 282, 137 A 97. As indicated in our former opinion, the evidence tends to show a proper rather than negligent use of the wrench by Bailey for it is therein shown that in applying the wrench to the nut and pulling back so that the dog could be released he performed the operation correctly and his later pushing the handle of the wrench from him showed that he knew the shaft must turn away from him to let the door open. Stone, who was the only witness to testify as to the use of the wrench by Bailey, was of the opinion that the latter acted as if he knew how to operate the wrench in opening a hopper. This witness also testified that he could not say whether Bailey had his hands on the wrench when "it started" and that he could not tell what made Bailey go off the bridge; that he knew the deceased "must have had the wrench in his hand, but whether the wrench was what threw him over, I couldn't say, because I was watching the nut on the car." If Stone's statement that he knew Bailey "must have had the wrench in his hand" is to be taken as meaning as of the time he fell off from the bridge it is apparent that it is merely his conclusion in this respect as he had testified that he was not watching Bailey at that time.
Lashua, one of the workmen, testified as follows, in answer to a question asking him to tell the jury what was done in the way of unloading the car:
"Well, they backed the car out, pulled the car out onto the underpass and then the wrench was gotten and Mr. Bailey went out onto the bridge to open the pocket of the car, and in doing so his wrench got away from him, or slipped, or something and he got off his balance, or else the wrench pulled him over, one or the other and losing his balance he fell off the bridge."
It is apparent that this witness was only giving his conclusions as to what caused Bailey to fall. *Page 439
The defendant refers us in its brief to no evidence which would support the request.
It would seem that the only possible negligent acts on the part of Bailey in the operation of the wrench which could have contributed to the accident would have been either his holding on to the wrench when the hopper started to open instead of letting go of it or in pushing so hard on the wrench that he lost his balance. As we have seen, the evidence is silent on this point so at the most this negligence must be inferred. But the evidence of the proper operation of the wrench stands against these inferences of negligent acts and makes them extremely doubtful, speculative and of no probative value.
Moreover, all the evidence shows is that when the hopper opened Bailey fell in such manner that he may have been pulled over by the wrench. As far as appears, no witness could testify whether he slipped, got off balance in pushing on the wrench, or was pulled over by the wrench. This left a mere possibility that he was pulled over by the wrench or was thrown off balance by pushing too hard on it and that alone would not have warranted a finding that the accident was caused by either of these two acts.Burton v. Holden Martin Lumber Co., 112 Vt. 17, 19, 20,20 A.2d 99; Wellman, Admr, v. Wales, 98 Vt. 437, 440, 129 A 317.
We have shown there was no evidence in the case nor any reasonable or probable inference to be drawn from the evidence that negligent use of the wrench by Bailey contributed to the accident. It follows, a fortiori, a finding that negligent use of the wrench was the sole proximate cause of the accident would also have been based on mere speculation or conjecture which we have held many times are insufficient foundations for a verdict.Jacobs v. Clark, 112 Vt. 484, 489, 28 A.2d 369; Perkins v. Vt.Hydro-Electric Corp., 106 Vt. 367, 399, 177 A 631; Wellman v.Wales, supra.
The jury returned a verdict for the plaintiff to recover a lump sum which was in the usual form except that over the foreman's signature was inserted, "We apportion the damages as follows," followed by the names of the widow and three minor children with sums set opposite each, which add up to the exact amount of the total sum awarded. The court had instructed the jury to apportion, telling them that if they found for the plaintiff, to ascertain the total amount that the widow and three children had lost by the death of Bailey, and then to apportion that amount among the *Page 440 beneficiaries. The jury were instructed that "those amounts must equal the total amount which you decide to award in your general verdict."
After verdict and before judgment the defendant moved in arrest of judgment because of such apportionment. To the overruling of this motion the defendant excepted.
The defendant claims, in effect, that an apportionment of damages by the jury makes the verdict void. In support of this claim it relies almost entirely upon Central Vermont R. Co. v.White, 238 U.S. 507, 35 S Ct 865, 59 L Ed 1433, Ann Cas 1916 B 252. Interpretations, varying somewhat, have been given the holdings in this case on this point by different courts but none of them that we have examined have considered the opinion has the effect claimed for it by the defendant, as indeed it has not. Without discussing the opinion on this point, it is sufficient to say that it merely holds that the Federal Employers' Liability Act does not require that the jury should apportion the damages, which is a matter properly for the probate courts and that a verdict in solido, the one there rendered, is not void.
Under the Act, 45 U.S.C.A. sec. 51, in the event of the employee's death, an action for damages is given to his personal representative, and him alone, for the benefit of certain dependent relatives. American R. Co. v. Birch, 224 U.S. 547,32 S Ct 603, 56 L Ed 879; Mo. K T.R. Co. v. Wulf, 226 U.S. 570,33 S Ct 135, 57 L Ed 355; St. Louis, S.F. T.R. Co. v. Seals,229 U.S. 156, 33 S Ct 651, 57 L Ed 1129; the damages recoverable are limited to such loss as results to such dependents because they have been deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the employee. The damage is limited strictly to the financial loss thus sustained. AmericanR. Co. v. Didricksen, 227 U.S. 145, 33 S Ct 224, 57 L Ed 456; Gulf,C. St. F.R. Co. v. McGinnis, 228 U.S. 173, 33 S Ct 426,57 L Ed 785.
In this case recovery was for the benefit of the widow and three minor children. In arriving at their verdict the jury had to find the financial loss of each. There can be no question that the court had the right to submit a separate special verdict asking what was found to be the pecuniary loss of each dependent, so as to have the information at hand in case of a motion to set aside the general verdict because excessive or inadequate. See P.L. 1688. The fact that *Page 441 the interrogatories were incorporated in the general verdict makes little, if any, difference.
Although an apportionment was unwarranted and should not be made in future cases it is not apparent that the defendant was harmed thereby. The jury were instructed to first find the total amount of damage and then to apportion the same. The various amounts equal the amount of the lump sum or general verdict. The apportionment may be treated as surplusage. It evidently was so regarded, as the court entered judgment simply for the lump sum awarded.
"It is well settled that the amount allotted to each party entitled is of no concern to the defendant unless such allotment increased the amount of the total recovery". In re Stone,173 NC 208, 91 S.E. 852, 854. See also, Penn. R. Co. v. Logansport Loan Trust Co., 29 F.2d 1; I.C.R. Co. v. Skinner, 177 Ky. 62,197 SW 552; Gulf C. S.F. Ry. Co. v. Carpenter, Tex Cir App,201 SW 270.
Under our rule he who alleges error has the burden of showing that he was prejudiced thereby. Meyette v. Can. Pac. Ry. Co.,110 Vt. 345, 356, 6 A.2d 33. As we have seen, it is not apparent that any harm has resulted to the defendant by the apportionment. Thus error, if any, in this respect is not reversible error.
Judgment affirmed.