
    The Standard Machinery Company v. Holton et al.
    
    In complaint upon an account, with closely conflicting evidence, a charge that “if the plaintiff fails to make out his case, or if you have any doubt as to whether the plaintiff has made out his case fully, the defendant should have a verdict, because it is the plaintiff’s duty to make out his case before he is entitled to recover,” is erroneous, and requires a new trial after verdict for the defendant, although no other error be found in the charge.
    March. 10, 1890.
    Charge of court. New trial. Before Judge Bower. Mitchell superior court. November term, 1888.
    Reported in the decision.
    I. A. Bush, for plaintiff.
    D. H. Pope, for defendant.
   Blandford, Justice.

This was an action brought by the plaintiff in error against the defendants in error upon an account. A verdict was had for the defendants, and the plaintiff moved for a new trial upon several grounds, one of which was as follows :

(4) Because the court erred in charging the jury that “ if the plaintiff -fails to make out his case, or if you have any doubt as to whether the plaintiff has made out his case fully, the defendant should have a verdict, because it is the plaintiff’s duty to make out his case before he is entitled to recover.” "Wé think this charge was error, as it placed a higher duty upon the plaintiff than the law imposes. The plaintiff is required to make out his case by a preponderance of the evidence; that is to say, the evidence should be so strong as. to satisfy the jury that the plaintiff is entitled to recover. The rule is, that the jury should be satisfied from all the evidence in the case that the plaintiff is entitled to recover, not that the defendant would be entitled to recover if the jury should have any-doubt as to whether the plaintiff made out his case or not. The principle given in charge by the court in this case was stronger than the rule applicable to a criminal case as applied to the State, which is, that the State should show beyond a reasonable doubt. This is the only error we find in the charge of the court, but owing to the closeness of the facts of the case, we feel that the judgment of the court below should be reversed upon this ground.

Judgment reversed.  