Rapp v. Sarpy County

Ames, C.

In an action against a county for negligently permitting a. highway to become and remain out of repair, causing a personal injury to the plaintiff, a traveler thereon, the answer, besides a general denial, pleaded contributory negligence. The court gave the following instruction, which was excepted to:

*383“The defendant has also pleaded contributory negligence on the part of plaintiff as a defense to this action. The bnrden of proving contributory negligence, by a preponderance of the evidence, rests upon the defendant, and, unless the defendant has so proved it, this defense is of no…