The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1911-06-30
An interesting One Given In Case Of
Beard W. Hublnoer Bros, Which
Was Damage Suit for
$4,000.
EMPLOYER AND EMPoLYE
N Cases Of This Character the EN-.
pIoye Assumes the Risk and
Then It Is Question Of Fact
For Jury.

A
Judge w. S. Hamilton's oral opin-
lon in sustaining the defendants mo-
ton for direct verdict in the $4,000
damage suit Of Beard vs.. j. c. Hubin-
ger Bros. is an interesting one to both
the employer and employe and Is
given in part as follows:
In this case, gentlemen, the defend
ant has filed a motion for directed
verdict. Upon passing upon this mo-
ton, the evidence introduced by the
plaintiff must be taken as establishing
the facts beyond dispute. The motion
has been very ably argued, pro and
con, by both attorneys for plaintiff
and defendant The question is, there
fore presented to the court whether or
not the facts establish, or tend to es-
tablish any negligence on the part
OF the defendant, or can an inference
of negligence on the par of the defend
and be drawn from the facts thus
established, or which the evidence
tends to establish Negligence is not
to be presumed, rather the presump-
ton is that ordinary care was used,
and the party claiming negligence
must show that the other party either
committed or omitted some duty in
cumbent upon him, by reason Of which
the first party sustains the injury
complained of.
AS MIR. Blood stated in his argu-
ment, the propositions of law govern
ing this class of cases are not very
much in dispute; as matter Of fact,
they are not in dispute; the difficulty
arises in applying the law to the diff
ferent cases. An examination of the
facts in the authorities cited Illus
trates this. -
In this case, If there is any negli-
gence 1t comes in one of three ways
was the defendant negligen in fall
ing to have the room properly lighted;
was 1t negligent in failing to have the
washer properly guarded; was there
negligence in the foreman, La Fevre,
giving the order to take the rope
over towards the river without warn
ing, the parties holding the rope to
look out for this goose neck, or what
ever you call 1t, on the end of that
washer?
AS | take the evidence, there is abb
solutely no evidence that establishes,
or tends to establish that the lighting
of this room had anything whatever
to do with this accident or injury.
There Is no evidence to establish,
or which tends to establish that this
washer was dangerous machine, OF
that 1t was the class Of machines
which ought to have been guarded;
even if 1t was, the requirement rela
tive to the guarding Of dangerous ma
chinery could not be applied In this
case. Here is millwright, perhaps
not used to this particular machine
but used to putting together and dis
mantling machines in different parts
of this plant, and any employer mas
the right to remove the. guards on q
machine for the purpose of dismant
ling and repairing same from time tc
time as may be required; In other
words, this piece Of machinery was
not in Itself source of peril.
For the most serious question pre-
sented Is that the one so ably pre-
sented by Mr. Blood, and | must say
ingeniously argued, that the foreman
La Fevere, by failing to tell the
plaintiff to watch out for the arm, OF
goose neck at the time that he al
rected that the rope be moved TOWARDS
/ the river, gave negligent order. NO"
apprehend that the rule Is slmpl,
this, that where there is a changed
condition of the machinery and there
are some new or latent defects, Their
the warning would have been IN
cumbent, at least | should have SUD
mitted this case on his negligence II
falling to give that warning, ii In this
case should have found any evi
dence to establish that there was any
such changed condition, or any sucf
latent defect as to render such warn
ing necessary or requisite on the par
of the defendant.
In the common affairs of life, there
are many things that happen that are
termed accidents. An accident whicf
occurs in the usual and ordinar!
course of business is one for which
the party must suffer the loss him
self. Then there may be accidents o
such an unusual nature that is 1t II
said res ipsa loquitur; such as the
familiar instance of brick thrown
from building and striking a per
Son on the walk below. Such unusua