Tripp v. Fiske

4 Colo. 24

• Court: Supreme Court of Colorado
• Decided: December 15, 1877
• Status: Published

Opinion

Thatcher, C. J.

The day has gone by when courts will refuse to enter a judgment of nonsuit upon motion of defendant, when the plaintiff has failed to introduce sufficient evidence in a case tried by a jury to support a verdict for the plaintiff, and in a case tried to the court, to warrant a finding and judgment in favor of the plaintiff. Wheelton v. Hardisty, 92 E. C. Law, 262; Ryder v. Wombwell, Law Rep., 4 Exchequer, 38; Commissioners, etc., v. Clark, 4 Otto, 284.

If he upon whom the burden of proof rest falls short in any essential particular ; if any element of proof necessary to make out his case is wanting, upon motion of the defendant, it is the duty of the court to enter a judgment of nonsuit;

In the case before us the court might on motion, when the plaintiff rested his case, have gone further, and rendered final judgment for the defendant upon the merits.

That the court might have rendered a judgment that would be a bar to another action, but instead thereof, entered only a judgment of nonsuit, certainly affords to the plaintiff no ground of complaint.

So meagre and unsatisfactory is the evidence that is pertinent to the plaintiff’s right to recover, that the court below was, as this court certainly is, unable to say that the plaintiff’s case was made out.

Judgment affirmed.