The daily Gate City and constitution-Democrat. (Keokuk, Iowa) 1916-1922, 1917-03-08
JUDGE Hamilton Takes Case Of o'Neiii
vs.. National Traveller eene-
fit Association From
the jury.
THIS Is SECOND TIME
,st Time Il Was Dismissed, But the
Court Refused to Entertain
This Motion This
Time.

In the district Couie .1AS -. =.
Judge Hamilton directed the jury AZ
the case of Eugene O'Neiil VS.. une
National Travellers Benent assoe,
ton to return verdict Tor Ihe ne
PENDANT This is the second une
that the case has been oahu
the Jury. The first time, last year
,,o,;on tn dismiss without preJu-
dice was sustained This time IN.
conrt entered an order to dismiss
the case and gave his reasons LOT 81
doing. S.,aa
and a.ked that a motion to dismiss
he entertained. This the court over
ruled. and several statements from
the plaintiffs attorneys were READ
into the record. A verdict Was OF
dered prepared, and was signed oy
". B. Doherty as foreman.
Judge Hamilton ordered the re-
porter to enter his ruling as giving
the defendant a directed verdict as
asked for in the motion. and platinum
was given an exception to the ruling.
The Courts Statement.
The court said:
I'm making this ruling l desire to
say, that in this case, In order 10
entitle the plaintiff to recover. one
of the essential or integral elements
which the plaintiff must establish Is
that Terrence O'Neirs death was
caused by bodily injuries sustained
within ninety days of his death enect-
ed directly and Independently OF all
other causes through external, NO
lent and accidental means.
"If his death was caused by tuber-
culosis not resulting from accident,
plaintiff cannot recover. If the acci-
dent OF March % was the cause CO
his death, plaintiff cannot recover.
II tuberculosis and the accident OF
March % combined together caused
his death, plaintiff cannot recover.
If the accident of March % and the
accident OF May % combined to-
gether caused his death, plaintiff can
not recover. If tuberculosis not re-
sulting from the accident of May 25,
and the accident of May 25 combined
together caused his death, plaintif
cannot recover.
plaintiffs recovery, IL he RECEIVERS
at all, must be based upon the acct
dent Of May 25
an this case the motion to direct
a verdict conpels the court, after
considering all the evidence, to make
such ruling as is required by tn,
obligations OF his ONCE. Where
plaintiffs cause of action are wholly
without proof. it then becomes the
duty Of the court to direct a verdict.
In some states, and formerly in this
state, verdict was not to be direct
ed where the plaintiffs cause of
action was supported by scintilla,
that is to say trace Of evidence.
That rule, however, does not now
prevail in this state, and the proper
rule is that the trial Judge should
sustain motion to direct verdict
when. considering all the evidence, 1t
clearly appears to him that it would
be his duty 10 set aside verdict If
found in favor of the party upon
whom the burden of proof rests.
Again, verdict should be directed
for the defendant If the evidence OF
the plaintiff is as consistent with the
conclusion which does not involve
defendants liability as it is with the
conclusion supporting such liability.
Merely Guess at Cause.
In the case at bar conclusions
| from the facts, and influences to be
uldWh Tie ldCLs HltEOQuCeu III
evidence involving the ncal;sbiiity Of
the defendant are equally as consist
ent as the conclusions to be drawn
from those facts involving defend
ants liability. A jury is to find its
verdict from facts and from just in
ferences to be drawn from facts in
troduced in evidence. A case, such
as the one at bar. is not to be sub
mitted to the jury merely to permit
the jury to guess what may have been
the cause Of the death Of the assured,
Terrence O'Neil.
Il had occasion once before to pass
upon this case. The facts in evidence
are not substantially different from
those proven in the previous case.
was firmly convinced at the time OF
my previous examination OF the case
OF the correctness of my position,
] have all the reluctance OF trial
Judge to take case from a jury. 1t
is much easier for a trial Judge to
follow the line OF least resistance and
shift the burden on to the jury: but
In doing as I am doing I take it 1 am
simply performing the duty of my Of
flee as l see it, and / assume all re-
sponsibility for 1t. IT, by any chance,
am wrong, remedy lies with an
other court which will set the matter
right"
To Try Other Cases.
The case of Slusher VS.. Bernstein
was called next, after the jury in
the present case was excused.
DEJDS0N ATG