¶1dissenting.
¶2I disagree with the present opinion of this court, which sets aside our former opinion herein upon the ground that the evidence is not sufficient to justify submitting the cause to a jury. In my opinion the evidence adduced at the. trial was sufficient to justify the trial court’s submitting the issue of appellant’s liability to the jury.
¶3. In view of the fact that the author of the court’s present opinion, when referring to the evidence, uses such expressions as “undisputed,” “undisputed except by argument,” “without dispute,” “no inference can arise,” “conceded,” “witnesses agree,” “hopeless confusion,” and “á rather improbable situation,” I call attention to the fact that this is a law action in which a verdict has been rendered and that the record on appeal is not before us for review de novo.
¶4We have frequently held, in such cases, that it is not *358the province of this court, in reviewing the record in an action at law when a verdict has been rendered, to resolve conflicts in or weigh the evidence. In testing the sufficiency of the evidence to sustain such verdict admissible testimony tending to support the case of the successful party should be accepted as the truth. See, Garbark v. Newman, 155 Neb. 188, 51 N. W. 2d 315; Snyder v. Farmers Irr. Dist., 157 Neb. 771, 61 N. W. 2d 557; Harris v. Pullen, 169 Neb. 298, 99 N. W. 2d 238. It is the same rule, in principle, as applies to a ruling on a motion for a directed verdict or for a judgment notwithstanding the verdict. See, Anderson v. Evans, 164 Neb. 599, 83 N. W. 2d 59; Edgar v. Omaha Public Power Dist., 166 Neb. 452, 89 N. W. 2d 238. As stated in Anderson v. Evans, supra: “In determining the question of whether or not a motion of a defendant for a directed verdict or for judgment notwithstanding the verdict should be sustained the court is required to consider the evidence in the light most favorable to the plaintiff and to resolve every controverted fact in his favor, and he should have the benefit of every inference that can reasonably be deduced therefrom.”
¶5In view of certain principles stated in this court’s present opinion, I call attention to the following holdings of this court:
“In an action for damages for negligence the burden is on the plaintiff to show by direct or circumstantial evidence that there was a negligent act or omission by the defendant and that it was the proximate cause of plaintiff’s injury or a cause which proximately contributed to it.” Weston v. Gold & Co., 167 Neb. 692, 94 N. W. 2d 380.
“Negligence is a question of fact and may be proved by circumstantial evidence. All that the law requires is that the facts and circumstances proved, together with the inferences that may be legitimately drawn from them, shall indicate, with reasonable certainty, the neg*359ligent act complained of.” Davis v. Dennert, 162 Neb. 65, 75 N. W. 2d 112.
¶6I shall review the record for the purpose of disclosing why I think the evidence adduced justified the trial court submitting this cause to the jury.
¶7Parsons Construction Company, to which I shall hereinafter refer as Parsons, had a contract to tear down the cornicing along the top of the north and west walls of the three-story Patterson Building located at the southeast corner of Seventeenth and Farnam Streets in Omaha, Nebraska, and to replace it with a brick firewall to be capped with stone. To carry out this contract Parsons entered into an oral lease agreement with Otto Schaap, doing business as Speedway Scaffold Company and hereinafter referred to as Speedway, to build a suitable scaffold on the north and west sides of this building for the use of Parsons’ employees in performing this contract. Speedway constructed a metal frame scaffold with a wooden platform for this purpose and on August 23, 1954, turned it over to Parsons. This wooden platform consisted of two parts, that inside the frame structure of the scaffold itself and that on brackets, whenever used. Parsons’ employees thereafter used this scaffold in performing the contract. On September 14, 1954, about 2 p.m., appellee Willis Baer, an employee of Parsons, fell from the platform of the scaffold to the concrete sidewalk below, a distance of some 35 to 40 feet, seriously injuring himself.
¶8Before discussing the details of the situation I think it would be best to introduce the witnesses and how they fit into the picture. Edward Connolly, to whom I shall refer as Connolly, was and is a salesman for Speedway. However, he supervised and actually performed the major part of the work of installing the scaffold. Henry Chris Sorenson, to whom I shall refer as Sorenson, was employed by Parsons as its general construction superintendent to oversee the work of all its smaller jobs, then six in number, which, on September 14, 1954, *360included the Patterson Building job.. Appellee Willis Baer, to whom I shall refer as Baer, was an employee of Parsons and, on the Patterson Building job, foreman of the brick work, being a bricklayer by trade. Dale Gosch, to whom I shall refer as Gosch, worked as a laborer for Parsons on the Patterson Building job and actually saw Baer fall, being on the roof of the Patterson Building at the time of the accident and only about 3 feet from Baer when he fell. Charles LeRoy Cato, to whom T shall refer as Cato, also worked as a laborer for Parsons on this job and was on the roof of the Patterson Building when the accident occurred. He did not see the accident. However, he did see Baer on the sidewalk immediately after it happened and removed the plank that upended from where it had lodged in the scaffold.' E. F. Morgan, to whom I shall refer as Morgan, was employed by the Fidelity Casualty Company of New York as a claim adjuster and, in behalf of Parsons, interviewed Sorenson about the accident on both October 12 and November 25 or 26, 1954, in connection with workmen’s compensation liability.
¶9Connolly testified that in building the platform for the scaffold they used both 2 x 10- and 2 x 12-inch planks of which some 35 were 14 feet long and 40 were 16 feet long. He further testified that on the main deck of the scaffold, between the upright posts, he installed a platform five planks in width and that on the brackets he installed a platform one plank in width, using either 2 x 10- or 2 x 12-inch planks on the brackets, and that he centered the planks installed on the brackets. Brackets were used on the north side where Baer fell.
¶10That a jury could find there was negligence in the construction of the scaffold used by Parsons is evidenced by the following: Connolly testified whenever a scaffold was to be heavily used over a period of time, such as was here contemplated and done, the planks used in building any platform thereon should be nailed to prevent the planks from sliding or working; that he *361did the nailing; that he checked to be sure that all planks used in the platform floor were securely nailed; and that he knew of no plank included in the flooring of the scaffold which hadn’t been so nailed. However, Sorenson testified that before he let employees of Parsons use the scaffold, after it was turned over to him by Speedway on August 23, 1954, he inspected the scaffold in detail; that he found Speedway had nailed only about 90 to 95 percent of the planks used in the floor of the scaffold; that from 5 to 10 percent had not been nailed; and that he nailed or put cleats on the 5 to 10 percent that had not been nailed to keep them from sliding or working. When I refer to planks used by Speedway in constructing the platform of the scaffold I include those placed on the brackets. When we bear in mind, as will hereinafter be brought out, that the plank that upended and let Baer fall had neither been nailed nor cleated, then it can be understood how a jury could find that whoever installed that plank in the platform of the scaffold did so negligently, and that such negligence caused the accident.
¶11But, was there evidence from which a jury could find that the plank that upended was placed in the platform by Speedway?
¶12Baer fell at a point on the north side of the building about midway thereof. At the time he was cleaning mortar stains from the face of the brick of the ■ new firewall with a sponge. At that point the main scaffold had been placed some distance (probably about 22 inches) from the wall because the cornice on the building, which was later torn down, stuck out that far and prevented the upright posts of the scaffold from being placed any closer to the wall itself. To bridge this gap, so the workers using it could get closer to the building, brackets were attached to the upright posts of the scaffold, which brackets extended over to the wall and were some 22 inches in length and had a surface on which to place planks for a platform of some 21% inches. *362Connolly testified he placed only a one-plank width platform on these brackets, which he centered, before turning the scaffold over to Parsons because Sorenson advised him that a one-plank width on those brackets would be enough.
¶13When the scaffold was turned over to Parsons, Sorenson said there was a gap of some 14 or more inches between the planks on the platform and the wall of the building so he took strips of %-inch plywood, 2 feet wide, laid them up against the wall, about a foot above the platform, and toe-nailed them to the platform planks; and that he then placed a canvas tarpaulin over the top edge of this plywood board and spread it clear across the platform of the scaffold in order to prevent the debris from the cornice, as it was being torn down, from falling down onto the sidewalk.
¶14The canvas and plywood on the scaffold north of the building remained in place until the morning of September 14, 1954, when Baer caused it to be removed. The platform of the scaffold, after the canvas and plywood had been removed, was then back in the form in which it was when it was covered by the canvas, as Baer testified that nothing was taken from or added to the platform of the scaffold at the time this canvas and plywood were removed.
¶15It is true that Sorenson testified that he had placed additional (2 x 8- or 2 x 10-inch) boards or planks in the platform on the brackets north of the building before putting up the plywood and placing the canvas thereon. However, the jury was not bound to believe this statement because Sorenson was thoroughly discredited and impeached on this and many other facts about which he testified in connection with the scaffold and the accident. Morgan testified that Sorenson told him, during the interviews he had with him shortly after the accident, that Parsons had never added any boards or planks to the platform of the scaffold constructed by Speedway. Connolly also testified that *363Sorenson advised him that one plank was all that need be placed on the brackets. Sorenson testified he put up the plywood to cover a 14- to 18-inch gap between the plank on the bracket and the north wall, which would not be the situation if there had been two planks on these brackets. Baer also testified there was a 6- to 8-inch gap between the platform he was standing on at the time he fell and the wall, which would only be true if there had been but one plank on the bracket but not if there had been two. I think a jury could properly find that there was only a one-plank width on the bracket at thé time that Baer fell; that it had been placed there by Speedway; and that the plank used, being only 14-feet long and neither nailed nor cleated, was negligently installed by Speedway for, by so installing it, the plank could work or slide when used and then upend whenever it had slid an inch or more and the overlap ceased to exist.
¶16It is true that some of Baer’s witnesses were mistaken in where the plank that upended was in the platform itself, but all of them correctly placed it as the one nearest the building. Cato testified he knew there were brackets there on which planks had been placed, however, he testified the plank that upended and fell constituted part of the main floor of the scaffold, being a plank inside the posts thereof. However, he also testified it was the inside plank, the one next to the building, that fell as that is where Baer was working. Gosch, who was on the roof of the Patterson Building and an eyewitness to the accident from only a few feet away, testified the plank that upended and let Baer fall to the sidewalk below was part of the main floor of the scaffold and inside the uprights. However, Cato was noc certain whether there were brackets on the scaffold extending over toward the building, as he didn’t pay any particular attention to that, but doesn’t think there were although he wouldn’t definitely say there weren’t any. He does testify that Baer fell next to the building and *364that the plank next to the building is the one that upended. Baer testified he fell straight down next to the building and that the plank next to the building, some 6 or 8 inches from it, was the one that gave way.
¶17It would only seem logical for the jury to find that the plank that upended and let Baer fall was the one next to the building. Thus, it seems to me from the evidence I have discussed, a jury could properly find that Speedway placed the plank that fell on the brackets without nails or cleats and so short that it would only have about a 1-inch overlap, since the upright posts on which these brackets were placed are 7' feet apart.
¶18That the jury could properly disbelieve anything Sorenson testified to is further evidenced by the following: Sorenson tried to identify the plank that fell as one he had selected from lumber in the Parsons’ yard and used in connection with a derrick that Parsons had installed on top of the roof of the Patterson Building. This derrick was used to lift materials they needed in connection with the job up onto the roof, particularly the capping stones for the firewall which weighed some twelve hundred pounds each. Sorenson testified these stones had been lifted onto the roof some 10 days to 2 weeks before September 14, 1954, and immediately placed on the firewall as capping because, due to their weight, they couldn’t be left on the roof. Just how or when any of these planks could have gotten into the platform on the brackets Sorenson did not try to explain.
¶19The facts are, as testified to by other witnesses and clearly shown by one picture offered in evidence, that the capping had not been placed on the firewall on September 14, 1954, and that it was not lifted to the roof until shortly before November 1, 1954, when it was placed as capping on the firewall.
¶20Sorenson identified the planks he selected from the yard of Parsons as 4 planks, some 12 or 13 feet in length and 2 x 12 inches in dimension. The plank that fell was 14' feet long and 2 x 10 inches in dimension.
¶21*365Finally Sorenson admitted that he told Morgan in the interviews had with him shortly after the accident that Speedway had installed the plank that fell from the platform and Morgan corroborated the fact that Sorenson had so advised him.
¶22I bring out the foregoing for the reason that Sorenson is the only witness that I can find who testified to the fact that Parsons had added any plank to the platform of the scaffold after the scaffold had been turned over to it by Speedway. The jury, in my opinion, was completely justified in not believing Sorenson in this respect for the reason that I have already stated. If it did not believe him in this respect then all the planks that were on the platform at the time Baer fell had been placed there by Speedway and if it so found, as I think it had a perfect right to do, based on the record before us, then the jury also had a right to find from the evidence adduced that the manner in which it was placed there by Speedway was negligent and that such negligence was the proximate cause of its upending and letting Baer fall to the sidewalk below, some 35 to 40 feet, and causing the injuries for which the jury had given him financial relief.
¶23In my opinion the record presents a jury question.