I regret that I cannot agree with the majority in the disposition of this case. I think that the admission of the Swaco wrench as an exhibit was prejudicial error. It was not received until after the plaintiff had completed her case except for some brief testimony relative to the title to the land at the bridge, in fact the plaintiff had rested except for the reservation of the right to offer this testimony and the right to offer the wrench as soon as it could be sent for and produced, and pending its arrival the court had heard defendant's motion for a directed verdict, so that the court had before it all the evidence regarding the wrench that was to be offered. Neither the previous testimony nor the wrench itself had any tendency to show that the frog wrench was not reasonably safe and suitable for use in opening hopper cars. The court had previously excluded an illustrated circular describing the wrench, and when the wrench itself was offered the court inquired if the plaintiff expected to prove that it *Page 442 was much safer than the other wrench, if it just offered the wrench, or a line of proof in connection with it, and plaintiff's attorney replied: "Well, if the Court please, I doubt that under all the circumstances with which the plaintiff is faced that we can show the actual use of this wrench, this particular wrench. I have no way of determining who has used it."
Merely because some evidence had previously been received about it did not bar the defendant from excepting to its admission as an exhibit, although under our holdings the error in cases where the evidence is substantially the same as prior evidence would be harmless, but here the exhibit itself was a piece of evidence that was much more than cumulative to what had gone before. It was an intricate tool, the nature of which had not been fully explained, and could with difficulty he explained without a visual demonstration. If it influenced the jury as it did the members of this Court who dissented when this cause was first here it was probably a deciding factor in their verdict. Attention is called to the following statement in their dissent,113 Vt at page 17,: "One of these wrenches was an exhibit in the case and it is apparent from an inspection thereof that the jury could have found that if Bailey had had such a wrench he could have made it impossible for it to pull him forward merely by shifting with his fingers the lever on the handle that controlled the ratchet."
In order to render error in admitting improper evidence harmless the other evidence must be sufficient to establish the fact involved. 4 CJ 977; 5 CJS Appeal and Error para. 1731, at page 1007. Here the other evidence did not show that if Bailey had had a Swaco wrench he could have made it impossible for it to pull him forward. Can there be any doubt that, because of the nature of this sad accident in which a young wife and three very young children had lost their husband and father, the jury would seize upon such a piece of evidence to justify a verdict in their favor?
I disagree with the conclusion of the majority about 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." For the purpose of the treatment of this exception the majority opinion adopts the defendant's construction of the 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. *Page 443 I concur in this construction. I think that the evidence tended to show a negligent use of the wrench, viewing it most favorably to the defendant. No one saw what caused Bailey to fall, but he fell in such a manner, because of where and how he struck the ground below the bridge, that he must have pitched forward rather than directly sideways, as he would have done had he slipped. From this it could reasonably be inferred that either he was pulled forward by the wrench or he pushed so hard on the wrench that when the nut started to turn he was off balance and pitched forward. If he was pulled by the wrench he hung on to it too long and was negligent in its use. If he pushed so hard on the wrench that he got off balance he was likewise negligent in its use. Because we cannot say which way it happened does not make it a mere possibility and speculation. The fair inference from the evidence viewed most favorably to the defendant is that the accident was caused in one of these two ways, and no other, and either way being the result of negligence is sufficient proof.
I do not follow what is said in the majority opinion to the effect that the request was defective, because it did not contain a statement that in order to find that Bailey's negligence in the respect claimed was the sole proximate cause of the accident the jury 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 to work, caused the accident. If Bailey's negligent use of the wrench was the sole proximate cause of the accident it necessarily follows that the place of work had nothing to do with it.
A careful examination of the charge shows that the jury were told that in order for the plaintiff to recover she must prove that the defendant was negligent, and that such negligence was the proximate cause of the accident, and that under the Federal Employers' Liability Act contributory negligence of an employee is not a bar, but only operates to reduce the damages that can be recovered. Although the jury were told that the defendant claimed that the negligence of plaintiff's intestate was the proximate cause of the accident, nowhere did the court charge that if the negligence of plaintiff's intestate was the sole cause of the accident there could be no recovery. As the former opinion in this cause shows, there was no evidence that the frog wrench was not reasonably safe and suitable for opening the hopper, and no failure of duty in respect to caution and warning was shown. It follows that if *Page 444 Bailey used the wrench improperly he was negligent. If such negligence was the sole cause of the accident the defendant's negligence, if any, could not have been even a contributing cause. There is no room for the application of the rule of comparative negligence in such a case. Great Northern R. Co. v.Wiles, 240 U.S. 444, 36 S Ct 406, 60 L Ed 732.
The court could hardly have misunderstood the force of the request. At the conclusion of its exceptions to the charge the defendant asserted that the negligence of the plaintiff may be the sole proximate cause of the accident, and stated that the court failed to instruct the jury that if the negligence of plaintiff's intestate was the proximate cause of the accident, there could be no recovery, and that even though the plaintiff and defendant were both negligent, if the plaintiff's negligence was the sole cause of the accident there could be no recovery. It was very important that the question of the negligence of plaintiff's intestate being the sole proximate cause should be clearly presented to the jury. The denial of the request, or a substantial compliance with it, was prejudicial error.
For the reasons stated I would reverse the judgment and remand the cause for a new trial.
Mr. Justice Sturtevant concurs in this dissent.
ON MOTION FOR REARGUMENT. JEFFORDS, J.
On leave, duly obtained, counsel for the defendant has filed a motion for reargument in this case, pending which the entry of judgment has been withheld. The defendant's position in support of the motion is, briefly stated, as follows: Among the issues of negligence submitted by the trial court to the jury was that of whether the defendant had furnished Bailey with proper tools with which to work; the verdict was general; this Court held in its former opinion there was no evidence of negligence to support the above stated issue; this holding was untouched by the decision of the United States Supreme Court, that Court stating as there was evidence to go to the jury on the issue of safe place to work sufficient to support the verdict and judgment the other issues presented by the defendant were not reached; consequently as it is impossible to say whether the verdict was based on the issue of proper tools or on that of safe place to work and as it might have *Page 445 been predicated on the issue not supported by evidence the case must be reversed and a new trial ordered, as a general verdict which might be based on an issue not supported by evidence cannot stand.
Counsel for the defendant now says that argument was made in respect to the effect of the Supreme Court decision in connection with the argument as to the admissibility of the Swaco wrench but he also states that the matter of the general verdict and its claimed possible lack of supporting evidence was urged as a separate and independent ground for reversal.
It is claimed that we misconceived the defendant's argument on the question whether the issue of proper tools should have been submitted to the jury; that we ignored the effect of our holding in our former opinion as to lack of evidence on the issue of proper tools; that either there was no consideration given to the point now urged for a reversal or else we misconceived "the legal effect of the general verdict based upon an issue which this Court held should not have been submitted to the jury."
The only reason advanced for the granting of the motion is the failure of the majority in the present opinion to treat the question pertaining to the validity of the general verdict and the claimed resulting error in sustaining that verdict.
We did not understand that this matter of the general verdict was orally argued. Certainly it was not briefed nor were authorities cited in its support. But if it be granted that argument was made as claimed by defendant's counsel the situation of the defendant is not improved thereby. The only exception to which it is claimed that such argument was addressed was the exception to the denial of the motion for a directed verdict. There were several grounds advanced in support of this latter motion but the only one now relied upon by counsel in the present instance was to the effect that the plaintiff had failed to prove any negligence on the part of the defendant. It was upon this latter ground, and this one only, that we, in our former opinion, based our holding of reversal and judgment for the defendant. This was the only ground of the exception to the failure to grant the motion for a directed verdict which the United States Supreme Court was called upon to consider. Thus the reversal of our former judgment for the defendant was predicated entirely upon our holding in respect to the only ground of the exception now relied upon by the defendant *Page 446 to sustain its present motion. The Supreme Court has decided that this ground of the motion was without merit. It has cast the defendant on this point and has barred the exception, now relied upon by the defendant, as far as this ground is concerned, from further consideration. When that Court spoke this ground of the exception became functus officio.
Counsel for the defendant says that upon argument of the motion for a directed verdict in the lower court in support of the ground based on lack of proof of negligence he called the attention of the court to claimed deficiencies in the plaintiff's case in respect to the issue of proper tools. So he did, and he also stated other reasons in support of that ground of the motion. But it can make no difference whether the claimed defects in the plaintiff's case in respect to her claims of negligence on the part of the defendant were argued singularly or collectively in support of that ground of the motion. The ground remained the same and the effect upon it by the holding of the Supreme Court is not altered by the method employed by counsel in arguing that ground.
In addition it should be noted that the office of a motion for a directed verdict is to secure a judgment for the party making the motion, and that is its only office. Counsel for the defendant does not claim that the now asserted ground in support of the exception to the refusal of the motion entitles the defendant to a judgment but, he says, it does entitle the defendant to a reversal and new trial. The only purpose or office of the exception as taken was to secure a review of the question of whether the defendant was entitled to a judgment. It should be apparent that the defendant cannot now use the exception for a purpose different from that for which it was originally taken.Morgan v. Gould, 96 Vt. 275, 280, 119 A 517.
The defendant cites the following cases in support of its contentions: Wilmington Mining Co. v. Fulton, 205 U.S. 60,27 S Ct 412, 51 L Ed 708; Erie R.R. v. Gallagher, 255 F 814; Christian v.B. M.R.R., 109 F.2d 103; Schilling v. D. H.R.R. Co.,114 F.2d 69; Rashaw v. C.V. Ry., 133 F.2d 253. It is true that in all of these cases a reversal was ordered and a new trial granted because the verdicts were general and might have been based upon an issue not supported by any evidence. In all of these cases it would appear, however, appropriate exceptions were taken and *Page 447 preserved upon which the appellate courts could predicate their reversal judgments.
There were several counts in the declaration in the Wilmington case. The defendant moved to strike three of the counts and requested the trial court to instruct the jury that there could be no recovery under these counts because there was no evidence of negligence to support the same. The court overruled the motion and refused to instruct as requested. Error was assigned because of the rulings of the court in these respects.
In the Erie case there was a request to withdraw from the jury one of the several specific charges of negligence and the error making necessary a reversal was based on the refusal to grant the request.
In the Christian case there were two claims of negligence. It was held on appeal that there was evidence to support one but not the other. Judge Patterson in the course of the opinion says:
"The judge was in error in submitting to the jury, over the defendant's objection, the issue of negligence by the engineer of the pusher locomotive."
Thus it would appear there was either a motion or request to withdraw that issue of negligence not supported by evidence. The Wilmington and Erie cases are cited in support of the reversal order.
In the Schilling case it appears that counsel for the defendant made a motion for a directed verdict but it also is to be drawn from the wording of the opinion that counsel in one way or another attempted to persuade the trial court to withdraw from the jury certain claims of negligence which were not supported by any evidence. Here the Christian case is cited in support of the judgment.
In the Rashaw case three allegations of negligence in respect to the presence of steam at the place of the accident were held to have been improperly submitted to the jury for the reason that there was no evidence to support the same. It is not apparent from a reading of the case on what exceptions the judgment of reversal was based. An examination of the printed record discloses that counsel for the defendant made a request which was, in effect, one to withdraw from the jury the issue of steam as a ground of liability. *Page 448 It is to be assumed the exception to grant that request was the basis of the judgment.
Thus it would appear that in none of the cases relied upon by the defendant were the reversals based on an exception to the refusal to grant a motion for a directed verdict. Apparently in each of these cases well recognized methods were used to raise the question of whether certain issues were supported by any reasonable evidence. It was incumbent upon counsel for the present defendant to make a motion that the issue of improper tools or appliances be withdrawn from the jury, or to request an instruction to that effect, or to take some other similar and effective course, followed by the necessary exceptions, in order to have an exception available to present for our consideration the question he now attempts to raise. That the rule is the same in the second federal circuit from whence come the last three referred to cases is shown by the late case of Basso v. Palmer,138 F.2d 914. Apparently in that case two grounds of liability of the defendant were submitted to the jury. It was held on review that the evidence to support one ground "was extremely tenuous" but that there was evidence to support the other ground which made a case for the jury. The court in the per curiam opinion says: "If the defendant had wished to confine its liability, it should have asked the judge to exclude the issue of suction." The judgment for the plaintiff was affirmed.
*Page 449Motion for reargument denied. Let full entry go down.