44 Neb. 682 | Neb. | 1895
This action, brought by the defendant in error for the recovery of the amount of a board bill, was originally tried before a justice of the peace of Colfax county. Afterwards, an appeal having been taken to the district court of said county, there was rendered a judgment in favor of the defendant in error for the sum of $84 on a verdict for the same amount. In the petition in error there are assigned with such distinctness as to entitle to consideration but two errors argued in the brief of plaintiff in error. The first of these is that the verdict is not sustained by sufficient evidence. A careful perusal of the bill of exceptions shows that this assignment is not well founded. The other assignment is directed against the ninth instruction given in the following language: “The burden of proof does not depend altogether, nor to any definite extent, upon the number of witnesses testifying for the respective parties, but rather upon the persuasiveness of the evidence furnished by such witnesses.” It is highly probable that when the district judge wrote this instruction he had in mind a definite proposition which he intended to state with clearness. In this however, he failed. The jury from this instruction could have obtained no light as to the burden of proof. If the court intended in this instruction to state that the weight of the testimony on each side was dependent upon the conditions enumerated, the idea was quite correct. Probably the
Affirmed.
