concurring in part and dissenting in part.
I concur in the argument contained in the opinion and in the statements contained in paragraphs 1 and 2 of the syllabus. While I think both are to be commended for their clearness of language and their aptness of expression, I am wholly unable to agree with the majority opinion that the judgment should be affirmed. I think the evidence is insufficient to sustain the verdict and judgment of the district court, and for that reason I dissent from the majority opinion, and agree with the personal opinion of its writer that he would “hesitate to find that this verdict is sufficiently supported.”
If the burden of proof is upon the plaintiff to establish the allegations in her petition, then when the proof is all in, if the allegations in the petition are not established, it is the duty of the jury to find for the defendant, and it is their duty to do so in any event and without considering any other question. The instruction complained of requires the evidence to preponderate in favor of the defendant or to be equally balanced before there can be a verdict for the defendant. I am opposed to the instruction. I believe it to be wrong. I think the case should be reversed. I think that the jury should have been told in substance that, if upon the whole evidence they were unable to say that the plaintiff’s case was established by a preponderance of such evidence, then they should find for the defendant.