Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-06-13
CONTINUED from Page 81

Ed. $50 and authorities therein cited
II the testimony of the plaintiff and
defendant was of equal weight with
the jury, then undoubtedly the receipt
should have controlled. II the only
point in the case upon which the testt-
mony Of the plaintiff and the defend.
ant was in conflict was in reference
to this receipt, it might seriously be
questioned if the jury would have
been justified in accepting the plain
tins testimony as against the re-
ceipt and the testimony of the defend
ant, there being no other evidence or
testimony touching the receipt other
than the receipt itself and the testi-
mOny of the parties. But in this con-
nectiOn, it is proper to consider the
fact that the testimony Of the plaintiff
and defendant was conflicting upon
every essentially material point in the
case, and sharply %. If the jury be
Gpheved the testimony of either of the
parties to the action, 1t must have
rejected as untrue the testimony OF
the other, not only in reference to the
receipt, but as to all, or practically
all the remaining material protion OF
his testimony. The jury gave the
plaintiff verdict for all he sued for.
To do so it must have believed his
testimony upon several other material
matters besides that affecting this re-
ceipt and. disbelieved that Of the de-
PENDANT. Under this state of facts
can it be said that the verdict of the
jury would not be supported by the
evidence when its effect was to mega
tive the force of the receipt. Ny
judgment is that it cannot be so said.
There is not any rule in respect 10
receipts different from that applicable
to any other prima facie evidence.
To destroy its effect is must be over
balanced by other evidence laid before
the jury, which is to judge whether
there is such preponderance. (23
Enc. supra.)
The term 'preponderance of evil
dence" is well defined in an instruc-
ton given to the jury in the case Of
Strand VS. Chicago etc. Ry. Co., re-
ported on appeal in 81 Mich. $50, and
therein pronounced a correct de-
finition of the term. The instruction
as given is as follows:
"The burden of proof rests upon the
plaintiff to make out the facts which
l have stated to you are essential to
establish his case by a fair prepon-
derance of evidence. By this is meant
such evidence as. when weighed with
that which is offered to oppose it, has
more convincing power in the minds
of the jury. 1t is not technical term
at all, but means simply that evidence
which Outweighs that which is offered
to oppose it. 1t does not necessarily
mean that a greater number of witness.
ses shall be produced on the one side
or the other, but that upon the whole
Evidence, the jury believe the greater
probability of the truth to be upon the
side of the party having the affirma-
tive of the issue"
Further commenting upon this in.
structiOn the Court says:
IF the evidence of the plaintiff is
more probable than that of the defend
ant, it certainly outweighs it, and, if it
Outweighs it.. the prepOnderance is
with the plaintiffs = > = One yer.
sion or the other was the true one
The jury in determining between them
had the right to weigh the probabi1i
ties of the different stories to asccr
tain which was correct" (Strand W.
Ry Co supra; Corniff VS. Cook 95 Ga
6s; Savannah etc. Ry Co., VS. Wide
man 80 ID 245)
In the case now before the Court
the jury having plainly given credence
to the testimony of the plaintiff a.
against that of the defendant upo.
all the material issues of the case, hi
testimony in the minds Q: the jur,
outweighed that of the defendan
relative to the receipt, and, hence
the preponderance Of The evidenc,
was by the jury determined to b.
against the facts recited in the re
ceipt.
During the progress of the cross es
animation of the defendant. counse
for defendant moved to strike out
portion of defendants testimony e1ici
ed upon cross examination upon tn
ground: That you cannot impeach
person by any matter that is not m:
terial to the issue, and further, "tha
the testimony thus far elected or thu
can be ELECTED upon the same line
cannot tend to impeach his testimon
and that the only way his testimon
can be impeached is by showing tn:
on the former trial he testified diffe
emily from what he testifies now
The motion was denied by the Cou
and this ruling is assigned as erro
Upon examination, the testimony mo
ed to be stricken out, does not appe:
to have been elected for the purpo.
impeaching the witness, nor cou
1t have been tended so to do. 1t W:
for the most part in reference to a
counts contained in a book Of defen
ants, portion of which had been {
fered in evidence by counsel for d
PENDANT upon direct examination.
find no error in the ruling of Il
Court
For the reasons given, the judgme
and order appealed from are affirmed
NOrcross, J.
We concur: