
    ERROR — TRIALS
    [Cuyahoga (8th) Circuit Court,
    March 11, 1907.]
    Winch, Henry and Marvin, JJ.
    Cleveland Electric Ry. v. W. Sherwood Snyder.
    Jury Determines Weight of Evidence not Court to Direct Verdlot for Plaintiff.
    It is the province of the jury to say whether or not the one npon whom the burden of proof has been cast has sustained it, and is error for the court to direct a verdict for plaintiff though his uncontradicted evidence makes a prima -fade case.
    Error.
    
      Squire, Sanders & Dempsey, for plaintiff in error.
    
      Excell & Oby, for defendant in error.
   HENRY, J.

The action below was brought upon an account which is alleged to have been stated between one Kelso and the Cleveland Electric Ry., through its president, H. A. Everett, for expenses incurred by said Kelso on behalf of said company while he was in its service. Kelso afterward assigned the account to the defendant in error, Snyder, who was plaintiff below.

Upon the trial the plaintiff produced a written statement of the account approved, or initialed, “H. A. E.” These initials, by the testimony of the secretary of the company who verified its answer denying the account, were written by its president.

The court, upon motion, directed a verdict for the plaintiff. This was error. The court can not assume as a matter of law that the testimony thus given was true, satisfactory or convincing to the jury, simply because no one by words contradicted it. Gannon v. Laclede Gaslight Co. 145 Mo. 502 [46 S. W. 968; 47 S. W. 907; 43 L. R. A. 505].

It is the province of the jury, not of the court, to say that he, upon whom is cast the burden of proof, has, in fact, sustained it. The court may, indeed, in proper cases, direet a verdict for the opposite party, for lack of evidence of an essential fact by blm whose duty it is to prove such fact. But that is not this case. Nor are we here considering a case where the plaintiff’s evidence is of such, nature as to be legally conclusive and incapable of denial or impeachment.

The plaintiff in error urges other reasons why this ruling of the court below was erroneous, but we deem it unnecessary to examine them. The judgment below is reversed and the cause remanded.

Winch and Marvin, JJ., concur.  