Rapp v. Sarpy County

• Decision Date: 17 March 1904
• Docket Number: 13,428
• Citation: 98 N.W. 1042,71 Neb. 382
• Parties: SOPHIA RAPP v. SARPY COUNTY. [*]
• Court: Nebraska Supreme Court

98 N.W. 1042

71 Neb. 382

SOPHIA RAPP v. SARPY COUNTY. ^[*]

No. 13,428

Supreme Court of Nebraska

March 17, 1904

ERROR to the district court for Sarpy county: GEORGE A. DAY, JUDGE. Reversed.

REVERSED.

H. Z Wedgwood, for plaintiff in error.

W. R Patrick, contra.

AMES C. HASTINGS and OLDHAM, CC., concur.

OPINION

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 burden 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 tending 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 she had admitted that she was...