The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1915-10-17
Judge Hamilton Sustains Motion That
Jury be Directed to Find for
McManus G. Tucker
in Case.
NO NEGLIGENCE SHOWN
Board Sprung, But This Was Not Held
to Show Any Negligence for
Which There Could be
Recovery.

The case Of A. E. Holzer VS.. Nc
yesterday, when Judge w. S. Hamil-
ton sustained the motion Of the de-
! tense asking for a directed verdict
The court in directing the verdict
held that the fact that the board on
which plaintiff was standing, sprang
ibid not necessarily show any negli-
gence on the part Of the defendant.
The mere happening of an accident ID
not proof Of negligence, the court
held. =
The decision Of Judge Hamilton is
given here in full in this case:
At the close Of the plaintiffs evil
dence, the defendant made a motion
asking the court to direct a verdict in
favor Of the defendant. 1t is the duty
of the court, when such motion is
made, to treat all the evidence that
has been adduced on behalf OF the
plaintiff as true, and to give 1t the
most favorable consideration for the
plaintiff. But If, upon an examination
and consideration Of the evidence, the
court finds that the plaintiff has not
introduced evidence which establishes,
or tends to establish his right to have
the case submitted to the jury, then,
and in that case it becomes the duty
, OF the court to direct verdict other
wise to submit the case to the jury.
The tendency of any court is to place
upon the jury the responsibility OF
deciding a case, and it Is the courts
duty, unquestionably, to permit tho
jury to decide every case unless the
court is fully convinced Of its position.
1.-The plaintiff in this case sues for
a personal injury which he alleges
i was received through the negligence
of the defendant, in the manner stated
/ in his petition, which negligence of
the defendant he alleges was the Ill
rect cause of the injury. He must
i have evidence establishing or tending
to establish this negligence Of the de-
PENDANT before he Is entitled to have
his case submitted to the jury.
Shows Plank Was New.
'In this case the sole ground Of
negligence which in any manner II
could be claimed does establish or
tend to establish negligence on the
mart of the defendant Is that when the
plaintiff was upon the board which had
been placed for use as scafold, ne
received from above, in the perform
ance Of his duty, plank Weighing
about seventy pounds, and that the
plank upon which he was standing,
sprung. that he lost his balance and
was thrown to the cement floor below.
The question then is, does the mere
fact that the plank upon which the
plaintiff was standing, sprung, estah'
lish or tend to establish, any negiS-
fence on the part of the defendant?
| ut Is conceded that it was the DUTY
of the defendant, while not an abso-
lutte insurer, to provide a reasonably
safe place for it's employe to work.
The fact that the plank sprang, and
that the plaintiff lost his balance and
fell cannot, Of itself, be said to es-
tablish or tend to establish negligence
on the part of the defendant. The
mere happening of an accident Is not
proof of negligence in such case as
! this. Here is q case in which the ap-
parent fitness Of the board has been
afI1rmatively shown. It has been shown
that the board was a new one, two
inch nlank dressed down to one and
ltiye-eichths inches, ten inches wide
and some fourteen to sixteen feet
long. The plaintiff relies upon the
case of Haworth VS.. Sewers Manufac-
turing Co., 81 Iowa 7G5, scaffoldlnS
case. In that case the plaintiff step
ned upon an old, knotty board that
i had been placed in the scaffold, which
board broke and he fell to the ground.
In that case the supreme court says
there is an abundance OF evidence
that the board which broke was knotty,
cross-grained and dangerous, 1t was
an old board taken from shanty
that was removed to make room for
tho new building That it was I'M
sound and its strength weakened by
time and exposure.
! Another scaffold Case.
"The case at bar is more like the
case of Bergman VS.. Altman, III
Iowa 693. That also was scanoid
Ease. In that case a board nailed TO
building called a lookout, EXTENDED
out to an upright, and upon which
the nlaintiff was standing, gave way.
lnrecipitatins the plaintiff to the
ground. This board was six 1nch
hoard. one inch thick, which extended
n
right scantling and some distance on
the building. The plaintiff knew moth
ing of it's character and testified that
IT split in two on the building. The
court in that case directed verdict
and the supreme court sustains the
decision of the court, saying that the
mere happening Of the accident was
no proof Of negligence in such case,
and that in that case, also as in this.
the apparent fitness Of the board was
affirmatively shown. In this case
has been introduced absolutely no
evidence to show that the character
of this plank was not good, or that 1t
was an improper plank to use on the
scaffold. or that the scaffold was more
dangerous by reason OF its use.
! Reluctant as l am to direct YER
diets. gentlemen. it Is ny duty under