Scott v. Wood

<p>Notice of Intention to Move for a New Trial—Record on Appeal. — The notice of intention to move for a new trial is not a part of the record on appeal, and need not appear therein.</p> <p>Burden of Proof —Preponderance of Evidence — Prima Facie Case.— The burden of producing a preponderance of evidence is upon the party who has the affirmative of the issue, and remains upon him throughout the trial. It is a different thing from the burden of making or meeting a prima facie case, which latter burden may shift back and forth in the course of the trial.</p> <p>Affirmative of the Issue—-Matters of Substance —Traverse in Affirmative Form. ■— In ascertaining who has the affirmative of the issue, matters of substance, and not matters of form, should control. The fact that the traverse is in an affirmative instead of a negative form is immaterial.</p> <p>Presumption of Continuance of Fact. — It is error to instruct the jury that a fact once shown to exist is presumed to continue until the contrary is shown. The true rule is, that a fact once shown to exist is presumed to continue as long as is usual with things of that nature.</p> <p>Id. — Question for Jury — Charge as to Inference of Fact. — The court cannot say, as a matter of law, that the salary of a salesman continues during several years at the rate at which it began. The jury might infer that it did, if they chose to do so, under all the circumstances; but it is error for the court to instruct them that they must do so, unless the contrary is shown.</p>