State v. Elliott (N. J. Sup.). 875 Tompkins, Commonwealth v. (Pa.). 135 Tompkins, Inc., v. Bridgeport (Conn.). 918 Tompkins, Inc., v. Bridgeport (Conn.). 909 Toth, Dodge v. (Conn.)... 124 Town of Norfolk, Murphy v. (Conn.). 711 Town of Sheldon, Britch v. (Vt.). 54 Town of Stamford, Connecticut Co. 566 (Conn.) 275 183 193 454 62 7 v. 554 515 Town of Warwick, Appeal of (R. I.). 906 Township of Northampton, Bullock V. 922 (N. J.)..... 654 197 436 Township of Northampton, Bullock v. (N. 59 J. Sup.) 196 State v. Reynolds (Conn.). 844 State v. Richardson (Del. Gen. Sess.). 660 State v. Riley (Conn.). 550 Township of Plymouth v. Larksville (Pa.) 801 587 State v. Sawyer (Conn.). 461 Travis, Holly v. (Pa.) 230 State v. Sing Lee (N. J.).. 113 Trefethen, Sweeney v. (Me.) 97 State v. Sousa (R. I.).. State v. Stidham (Del. Super.) 680 State v. Verdon (N. J. Sup.). 818 603 Trustees of State Hospital of Middle Coal Field of Pennsylvania v. Lehigh Valley Coal Co. (Pa.). 255 State Board of Medical Examiners v. Curtis (N. J. Sup.).... State Camp of Pennsylvania of Patriotic 339 Turner v. American Dist. Telegraph & Messenger Co. (Conn.) 540 Turner v. Spicer (N. J. Ch.).. 41 281 Turner & Seymour Mfg. Co. v. Acme Mfg. Co. (N. J. Ch.).... 123 (Pa.) 255 Sterne v. South Jersey Title & Finance Co. (N. J. Ch.).. 589 United Rys. & Electric Co. of Baltimore, Foos v. (Md.). 849 Stevens' Estate, In re (Pa.). 159 Stewart v. Small (Me.).. 683 United Rys. & Electric Co. of Baltimore, Upton v. (Md.).. 484 Stewart & Co. v. Howell (Md.). 899 United Sec. Life Ins. Co. v. Perugini Union Mut. Relief Ass'n (Pa.).. 927 Stimpson, Conservation Co. v. (Md.). 495 United States Fidelity & Guaranty Co. v. Stitt, Limpert Bros. v. (N. J.). 832 Metcalf (R. I.) 595 Story v. Story (N. J.).. Street, Jacobs v. (Conn.). Strite v. Wolf (Pa.). Strong v. Nesbitt (Pa.). 250 753 United States Nat. Bank v. Union Nat. Bank (Pa.)... 792 Stump, Bristol v. (Md.). 470 United Wire & Supply Co., McIntosh v. Suburban Water Co. v. Oakmont (Pa.) 778 (R. I.) 413 Suga v. Haase (Conn.). Suleiman v. Artinian (R. I.). 387 837 Upton v. United Rys. & Electric Co. of Baltimore (Md.). 484 Sullivan, Chandler & Co. v. (Me.). 686 Sullivan, Washington & R. R. Co. of Mont gomery County v. (Md.). Superior Court, Chew v. (R. I.) Swartz v. Bachman (Pa.). Swartz v. Meier (Md.). 605 Verdon, State v. (N. J. Sup.).. 260 Vermont Sav. Bank, Sparrow v. (Vt.). 202 Vican v. Lederer Realty Corporation (R. 818 433 Sweeney v. Trefethen (Me.) 97 I.) 594 Sweet, Williams v. (Me.).. 316 Swift & Co., Smith, De Macedo & Co. v. Warrington, J. R. Watkins Medical Co. v. THE ATLANTIC REPORTER VOLUME 110 (94 Vt. 227) terion of measurement of compensation for BARCLAY v. WETMORE & MORSE GRAN- such injuries. (Supreme Court of Vermont. Washington. May 8, 1920.) 1. Pleading 339-Waiver of count of declaration eliminated it. A count of the declaration having been waived, the pleading stood as if the count had never been incorporated therein. 2. Evidence 265 (8)-Inconsistency between count and withdrawn count offered as admission may be explained. Where plaintiff waived second count of declaration which was offered in evidence as an admission, any inconsistency between it and first count was open to explanation, as that it was due to mistake or inadvertence. 3. Appeal and error 1099 (7)-Decision on prior appeal as to sufficiency of evidence conclusive. Defendant is concluded by decision on prior appeal that evidence was sufficient to carry case to jury, unless evidence pertinent to issues on retrial was materially different. 7. Damages 132 (14) — $11,000 verdict for servant whose sight was destroyed not excessive. Verdict for $11,000 in favor of a 56 year old servant, earning $15.84 a week, injured by an explosion which destroyed his eyesight, affected his hearing, burned his right arm so as to impair its use, shattered his nervous system, etc., held not excessive. 8. New trial 81-Motion to set aside verdict not proper way to challenge want of evidence. Motion to set aside verdict in favor of injured servant was not proper way to challenge want of evidence that mortality tables were not introduced to show probable length of plaintiff's life as affecting time he would probably suffer; such advantage as employer was entitled to on account thereof should have been taken before verdict by request to charge or exception to charge as given. 9. Appeal and error 4. Appeal and error 1099 (7) Excepting in party must point out difference in evidence on retrial where sufficiency determined. 1070(1)-Want of evidence in servant's action for injuries harmless. In servant's action for injuries, any error permitting plaintiff to recover a certain amount without introduction in evidence of mortality tables to show his probable length of It is incumbent on excepting party, when life as affecting time he would probably suffer asking court to consider question of sufficien-held harmless to defendant employer. cy of evidence covered by its former decision, to point out some substantial difference in evi- 10. Appeal and error 758(3) - Exceptions dence introduced on retrial. merely referring to transcript not properly briefed. Exceptions briefed only to extent of referring to pages of transcript where it is said they can be found, and point of several exceptions ascertained, are not so briefed as to bring them before Supreme Court for review. Exceptions from Washington County Court; Frank L. Fish, Judge. Action by Charles Barclay against the Wetmore & Morse Granite Company. Judgment for plaintiff, and defendant excepts. Affirmed. Servant suing for injuries prior to taking effect of Workmen's Compensation Act is not limited in his recovery to maximum amount fixArgued before WATSON, C. J., and POWERS, ed for such injuries by the act on any ground HASELTON, TAYLOR, and Legislature has provided a standard or cri- MILES, JJ. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes John W. Gordon and S. Hollister Jackson, [not that of which he complained in his eviboth of Barre, for plaintiff. dence. The count having been waived, it Edward H. Deavitt, of Montpelier, for de- stood as did the original answer in Scoville fendant. TAYLOR, J. This case has once before been here on exceptions. On the record then presented the defendant had been found liable under both counts of the declaration, one charging negligence in failing to provide the plaintiff a safe working place, and the other, in employing an incompetent foreman to superintend the work. It was then held that the question of the defendant's negligence under the first count and of the plaintiff's freedom from contributory negligence were, as the evidence then stood, for the jury; but that the court erred in submitting the case on the second count, which required a reversal and a new trial. 92 Vt. 195, 102 Atl. 493. At the retrial the plaintiff waived the second count and claimed to recover only under the first. There was a verdict and judgment for the plaintiff, and the defendant reserved exceptions. [1, 2] The questions briefed relate (1) to liability and (2) to damages. The question of liability is argued under an exception taken to the action of the court in overruling the v. Brock, 79 Vt. 449, 456, 65 Atl. 577, 118 Am. St. Rep. 975. The inconsistency, if it existed, was open to explanation, as that it was due to a mistake or inadvertence. Bartlow v. Chicago, etc., R. Co., 243 Ill. 332, 90 N. E. 721; Mims v. Jones, 135 Ga. 541, 69 S. E. 824; 1 R. C. L. 499; Note Ann. Cas. 1913A, 1135. [3, 4] The claims now urged in support of the other grounds of the motion are the same as those relied upon at the former hearing. So it is that the defendant is concluded by the decision then reached that the evidence was sufficient to carry the case to the jury unless the evidence pertinent to the issues at the retrial was materially different. It is a rule of general application that a decision in a case by a court of last resort is the law of that case on the points presented throughout all the subsequent proceedings therein, and no question then necessarily involved and decided will be reconsidered by the court in the same case on a state of facts not different in legal effect. Guilmont's Adm'r v. C. V. Ry. Co., 82 Vt. 266, 73 Atl. 580, and cases there cited; Mellen v. U. S. Health defendant's motion for a directed verdict. & Accident Ins. Co., 85 Vt. 305, 82 Atl. 4; InOnly 3 of the 18 grounds of the motion require separate attention. The sixteenth gram's Adm'x v. Rutland R. Co., 89 Vt. 278, ground relates to a question of variance, 95 Atl. 544, Ann. Cas. 1918A, 1191; 4 C. J. which the court disposed of by permitting an 1093. The principle is so well established in amendment of the declaration as provided by our cases, and so firmly grounded on considthe Practice Act. G. L. 1796. The seven-erations of public policy, that discussion is teenth and eighteenth grounds advance the unnecessary. Defendant's counsel recognize claim that the plaintiff admitted by the alle gations of the second count that the cause of the accident was different from that shown in evidence under the first count, in that the seam he was loading was in a different place, and that the admission was conclusive of his right of recovery. The second count was offered in evidence and excluded on plaintiff's objection, but later admitted when the objection was withdrawn. The defendant's brief sheds very little light on the question presented. The point is disposed of with the claim that matters contained in the second court were in the nature of a conclusive admission against the claim of the plaintiff as shown by his evidence, and therefore that the defendant was entitled to judgment on its motion for a verdict. We have not been furnished with a copy of the count which would be necessary to support the defendant's position; but, if the record showed all that is claimed for it, the result would be the same. The question of the admissibility of the abandoned count is not raised, and it is to be treated as properly in the case. But, being in, it does not have the effect claimed for it. In any event, it did not establish conclusively that the place where the plaintiff the force of the rule and attempt to escape its effect with the assertion that the case is different from the one before the court at the former hearing; but the only difference attempted to be pointed out is the abandonment of the second count. As to this feature of the case, it is not apparent that the waiver of the second count materially affected the proof, for the only evidence relied upon at the former trial to support the charge of incompetency was the single act of negligence for which the plaintiff was permitted to recover under the first count. But be this as it may, it is not even attempted to point out any substantial difference in the evidence pertinent to the first count; and, being the excepting party, it is incumbent upon the defendant to do this when asking the court to reconsider a question covered by its former decision. It seems quite clear from a careful reading of the testimony quoted in the defendant's brief that it is not different in legal effect from that on which our former decision was based. It follows that the question of liability is not open for consideration. As to this the action of the trial court in overruling the motion for a directed verdict was controlled by the law of the case as determined by |