Michigan Reports (Volume 193); Cases Decided in the Supreme Court of Michigan (Paperback)

This historic book may have numerous typos, missing text or index. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. 1917. Not illustrated. Excerpt: ... tiffs' counsel, but it is contended that the case just referred to is not the law upon the subject at the present time, and that the correct rule is that stated in Longyear v. Gregory, 110 Mich. 277 (68 N. W. 116), and Bockes v. A. McAfee & Son Co., 165 Mich. 7 (130 N. W. 313). A perusal of the charge, as given, satisfies us that the case was properly submitted to the jury upon all these questions. The court charged the jury, among other things, as follows: "The burden of proof in this case is upon the plaintiffs to maintain their cause of action by a fair preponderance of the evidence. As I have said, there are some undisputed questions of fact. In view of the undisputed questions of fact, it becomes your duty to find a verdict in favor of these plaintiffs. The only question upon that point is as to the amount of damages; that is a disputed question of fact to be determined by you. There is a dispute in the evidence here as to what the damage is that these plaintiffs sustained. You will take all the evidence in the case and consider it fairly and dispassionately and arrive at your verdict as to what this testimony shows by a fair preponderance of the evidence is the amount of damage which these plaintiffs have sustained by reason of the trespass which the undisputed evidence in this case shows has been committed on the lands in question. * * "I charge you that, in determining the question of whether the trespass was casual and involuntary, this is an affirmative defense, and the burden of proof shifts to the defendants to show by a fair preponderance of the evidence that such trespass was casual and involuntary. * * * '1 charge you there must be some evidence in the case of wilfulness, wantonness, or evil design on the part of any defendant held liable ...