Bailey v. Cent. Vt. Ry. Inc.

• Decision Date: 04 January 1944
• Docket Number: No. 1692.,1692.
• Parties: BAILEY v. CENTRAL VERMONT RY., Inc.
• Court: Vermont Supreme Court

35 A.2d 365

BAILEY

v.CENTRAL VERMONT RY., Inc.

No. 1692.

Supreme Court of Vermont.

Nov. 2, 1943.

Rehearing Denied Jan. 4, 1944.

COPYRIGHT MATERIAL OMITTED.

Exceptions from Washington County Court; Orrin B. Hughes, Presiding Judge.

Action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., by Florence J. Bailey, administratrix of the estate of Bernard E. Bailey, deceased, against the Central Vermont Railway, Inc., to recover damages for death of decedent while in defendant's employ. Defendant's motion for directed verdict made at the close of all the evidence was overruled, and defendant brings exceptions.

Affirmed.

Conforming to opinion of the United States Supreme Court, 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444, which reversed113 Vt. 8, 28 A.2d 639.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

T. Tracey Lawson, of Barre, and McNamara & Larrow, of Burlington, for plaintiff.

Horace H. Power, of St. Albans, for defendant.

JEFFORDS, Justice.

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 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 given, 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 different, the principle is the same here as in Cole v. North Danville Coop. Creamery Ass'n, 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 Employer's Liability Act, 45 U.S.C.A. § 51, 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 purposes of this Act, be considered as being employed by such carrier in such commerce and shall be considered as 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 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 the 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 page 576 of 68 Vt., at page 478 of 35 A., 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. The request...