Rapp v. Sarpy County

98 N.W. 1042, 71 Neb. 382, 1904 Neb. LEXIS 50

• Court: Nebraska Supreme Court
• Decided: March 17, 1904
• Docket: No. 13,428
• Status: Published

Opinions

Ames, C.

In an action against a county for negligently permitting a. highway to become and remain out of repair, causing a personal injury to the plaintiff, a traveler thereon, the answer, besides a general denial, pleaded contributory negligence. The court gave the following instruction, which was excepted to:

“The defendant has also pleaded contributory negligence on the part of plaintiff as a defense to this action. The bnrden of proving contributory negligence, by a preponderance of the evidence, rests upon the defendant, and, unless the defendant has so proved it, this defense is of no avail; but if the plaintiff’s own testimony tends to show that she was guilty of any carelessness, which caused or aided in causing the injury complained of, then the burden of proof shifts, and it devolves upon the plaintiff to satisfy you, by a preponderance of the evidence, that she was not guilty of contributory negligence.”

There was a verdict for the defendant. The instruction is palpably erroneous. It is a rule, as well of law as of logic, and one which, humanly speaking, is indispensable to the right decision of any controversy whatever, that the burden of proof, or of argument, rests upon him who maintains the affirmative of an issue. Not only so, but it abides with him continuously from the opening of the debate until its close. In certain instances, deficiencies of otherwise incomplete proofs are supplied by presumptions more or less conclusive in their nature, but, in such cases, their effect is upon the weight of the evidence required to maintain the issue, not upon the obligation of the party to produce a preponderance of the former. The distinction is of the uttermost practical importance, and courts and law writers ought scrupulously to abstain from the inaccurate and misleading expression that the burden of proof “shifts” during the progress of a trial. Oftentimes, it is true, the use of the term, because of the peculiar circumstances of particular cases, may work no harm; but there is always danger of its doing so, as it may very probably have done in this case, in which the. jury were told that, if there was anything in the plaintiff's testimony lending to prove that her conduct was negligent, she was burdened with the responsibility of establishing a negative “by a preponderance of the evidence.” This could not have been so. If sin-, had admitted that she was negligent, or if her evidence had disclosed conduct on her part from which the law conclusively presumes negligence, the litigation would, of course, have been at an end, not because she would have thus assumed the burden of proof, but because she would have furnished the evidence requisite to enable the defendant to meet the requirement, in that regard, which the issue made of him. But the mere fact that her testimony tended to shoAv that she was negligent, if it did so, went no further toward maintaining the issue tendered by the answer, than would have done evidence of equal weight and credibility produced by the defendant. All that can justly be said about it is that the fact that the testimony was her OAvn, it being in the nature of an admission against her own interest, added immensely to its weight and credibility, but, even so, there may have been other evidence in the case tending with equal or greater strength in the opposite direction, and unless, upon the whole record, there was a preponderance shoAving her negligence, she was not precluded, upon that issue, from recovery. We think there is a practical unanimity among text writers and the better considered decisions to this effect. Crowinshield v. Crowinshield, 2 Gray (Mass.), 524; Heinemann v. Heard, 62 N. Y. 448; Scott v. Wood, 81 Cal. 398, and authorities cited in the opinion. The instruction quoted, which must have been inadvertently given, reversed ibis rule. If there was evidence in the case, whether in her OAvn testimony or else-Avhere, tending to prove that she Avas guilty of negligence, it was incumbent upon her to rebut it with other evidence of at least equal weight and credibility, of which the jury should have .been permitted to judge, but more than this could not have been justly required of her.

It is recommended that the judgment of the district court be reversed and a new trial granted.

Hastings and Oldham, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and a new trial granted.

1. Reaffirmed: Burden oe Peooe. On rehearing former decision adhered to. 2. Cases Disapproved. The cases of Chicago, B. & Q. R. Co. v. Feath-erly, 64 Neb. 323, and New Omaha Thompson-Houston Electric Light Co. v. Rombold, 68 Neb. 54, 71,‘ disapproved in so far as opposed to the doctrine in this case.

Reversed.