The defendant in error made a motion to dismiss the writ of error on the ground that Travelers Insurance Co-, was not made a party defendant in error to the bill of exceptions, and оn other grounds hereinafter dealt with. Upon a written motion made by the plaintiff in error to amend the bill of exceptions in this court, the Travelers Insurance Co. was made a party defendant in error. The attorneys for Travelers Insurance Co. acknowledged service of the bill of exceptions, acknowledged receipt of copy thereof, waived all other and further service, and consented that the bill of exceptions be amended so as to name as an additional party defendant in error Travelers Insurance Co., and agreed and consented that the case be heard on its merit. The motion was granted by this court. See
Western Union Tel. Co. v. Griffith,
Defendant in error also moved to dismiss the bill of exceptions relating to certain rulings of the court which, the defendant in error contends, are not properly raised or assigned as error. Unless evеry assignment of error is subject to such an attack the motion will be denied.
Dickson v. Burwell,
The defendant in error contends that an assignment of error cannot be based on the denial by the court of the motion by
*755
plaintiff in error for judgment notwithstanding the verdict because the motion for a, directed verdict was not reduced to writing. The cases cited by the defendant in error as authority for this contention show fаcts which require a written order, e.g., rulings on demurrer
(Construction &c. Laborers Union v. Williams Constr. Co.,
Therefore, the defendant (plaintiff in error) has made a proper assignment of error on the denial of its motion for judgment notwithstanding the verdict.
The gist of the defendant’s motion for a judgment notwithstanding the verdict is that there was no evidence adduced at the trial of this case to show that the board of a scaffold which broke and gave way under the plaintiff’s weight was one placed in the room by the defendant or was one furnished by the defendant to be used on the scaffolds. The defendant points out that two other contractors maintained boards at the building to be used for platform purposes on the scaffolds. Without repeating a great deal of testimony, we are of the opinion that the evidence was sufficient to form an issue for the jury as to whether the defendant furnished a scaffоld board which was not reasonably suited for the purpose intended, whereby the plaintiff, a workman and invitee, was injured while working on a scaffold when a board broke under his weight.
Chancey v. Shirah,
The president of the dеfendant corporation testified: “We covered the entire area of the ground floor in the operation building, practically all of it was covered with scaffolding for the use of the electricians, the plasterers the mechanical trade, and the lathers.” Officers and agents of the defendant corporation testified that they erеcted the scaffolding ini the room where the plaintiff was injured, although it is disputed whether the defendant’s agent or employee placed the particular board *757 which brokе in the room where it was later used on the scaffold. The evidence shows that the defendant placed many boards in the room for the purpose of being used on the scaffolds, and the subcontractors, mechanics, etc., were free to move and use these boards for the purpose of scaffolding. The board which broke under the plaintiff’s wеight wa's introduced into evidence, and competent witnesses testified that because the board contained knots running transversely from side to side, it was unfit for use on a scaffold tо support a man’s weight.
While no witness testified that the board which broke under the plaintiff’s weight was absolutely the one furnished by the defendant, there were facts and circumstances tо authorize the jury to conclude that such board was furnished by the defendant. The situation is best summed up by the language of Justice Bleckley, speaking for the court, in
Brown v. Matthews,
“Circumstantial evidence is sufficient to authоrize a verdict in a civil case where it reasonably establishes the theory relied on, and preponderates to that theory rather than to any other reasonablе hypothesis; but such evidence need not be inconsistent with all other reasonable theories beyond a reasonable doubt or to the point of logical demonstratiоn.”
Dodd v. Callaway,
As stated in
Chancey v. Shirah,
We are of the opinion that the facts proved, as recited above, tend to establish thе conclusion claimed by the plaintiff and render less probable all inconsistent conclusions.
*758 The evidence supports the verdict, and the court did not err in denying the motion for a new trial upon the general grounds and in overruling the motion for a judgment notwithstanding the verdict.
Special grounds 4 through 7 of the amended motion for a new trial complain of a dеmonstration by the plaintiff before the jury. The demonstration consisted of placing several men on a 2 x 10 plank approximately 9 feet long, which was elevated 7Yz inches above the floor by wooden blocks placed at the end of the planks. Under the facts of this case the court did not err in permitting the demonstration to be made in the prеsence of the jury in view of the testimony of the president of the defendant corporation that no 2 x 101 plank spanning 7 feet was safe for use as a scaffold board by a workman weighing 220 pounds. No reversible error is shown in the remaining special ground of the amended motion for a new trial.
Judgment affirmed.