
    Indiana Union Traction Company v. Bales.
    [No. 9,728.
    Filed February 14, 1919.]
    1. Appeal.—Review.—Verdict.—Conclusiveness.—Conflicting Evidence.—Where there is evidence from which the jury might reasonably find or infer a fact, and they find accordingly, the court on appeal will not disturb the verdict because of other evidence in conflict with that on which the finding is made. p. 393.
    2. Appeal.—Review.—Refusal of Instructions.—Party Entitled to Object.—Appellant cannot complain because the court refused instructions tendered by appellee, p. 394.
    3. Appeal.—Record.—Incorporating Instructions.—Signing.—Statute.—Instructions not signed by the judge, as required by §561 Burns 1914, Acts 1907 p. 562, are not part of the record, p. 394.
    4. Damages.—Personal Injuries.—Excessive Damages.—A verdict for $2,000 for the fracture of both bones of a leg above the ankle, causing an impairment of the ankle joint, which will probably result in a flattened foot, is not excessive, as the amount of recovery is not so large as to indicate that the jury acted from prejudice, partiality, or other improper motives in assessing the damages, as indicated by the fact that on the first trial of the cause the damages were fixed at $3,000. p. 394.
    5. Damages.—Assessment.—Province of the Jury.—In an action for personal injuries sustained by a passenger on a railroad, it was the jury’s exclusive province to fix the compensation to be awarded to plaintiff, p. 394.
    From Delaware Superior Court; Robert M. VanAtta, Judge.
    Action by Elwood Bales against the Indiana Union Traction Company. From a judgment for plaintiff, the defendant appeals.'
    
      Affirmed.
    
    
      J. A. Van Osdol, William A. Kittenger, William 8. Diven and Albert Riven, for appellant.
    
      Aaron M. Walts, Ashley G. Emshwiller, George W. Cromer and Harry Long, for appellee.
   McMahan, J.

This is the second time this cause lias been before this court. Indiana Union Traction Co. v. Bales (1915), 58 Ind. App. 92, 107 N. E. 682. Tbe appellee sued to recover damages for injuries, to his person, alleged to have been caused by tbe negligence of appellant. The complaint charges that, at the time be received tbe injuries, be was a passenger on one of appellant’s cars, and that, when be bad reached bis destination and while be was in tbe act of alighting from tbe car, tbe appellant negligently started tbe car without giving him a reasonable time to get off, and that be was thrown from the car and bad one of bis legs broken, and was otherwise injured. Trial by jury, verdict and judgment for appellee for $2,000.

Tbe only error assigned is tbe action of tbe court in overruling tbe motion for a new trial.

Tbe sufficiency of tbe evidence to sustain tbe verdict, and tbe giving of instructions Nos. 10,18,19 and 24, given at tbe request of tbe appellee, are tbe only questions we are required to consider, as all others are expressly waived.

Tbe theory of tbe complaint is that tbe appellant started its car while appellee was in tbe act of alighting therefrom and thereby injured him. Appellant says it is well aware of the rule that this court will not weigh conflicting evidence, but it says that tbe testimony of appellee raises no conflict; that this court is not called on to weigh tbe same, but merely to declare that if has no weight as evidence; that it is against all reasonable probabilities and is incredible as a matter of law. Tbe evidence is conflicting. Tbe appellee and one witness testified as to tbe manner in which be received bis injury. A number of appellant’s witnesses testified to a different state of facts, and, although it might seem incredible that he was injured in the manner he claims he was, we are not at liberty to reverse the case because of conflicting testimony.

The general rule is that, if there is evidence from which the jury might reasonably find or infer a fact, and they find accordingly, this court will not

disturb the verdict because of other evidence which is in conflict with that on which the finding is made. Toledo, etc., R. Co. v. Goddard (1865), 25 Ind. 185.

As said by the Supreme Court, in Fort Wayne, etc., R. Co. v. Husselman (1878), 65 Ind. 73: “Whether or not the evidence in any case is clear, or overwhelming, or conclusive, is a question for the jury trying the cause, and the .judge presiding at such trial. When a jury have passed upon this question, and returned their verdict, and when the court, under whose eye and within whose hearing the evidence has been introduced and the cause has been tried, has refused to disturb the verdict upon the weight or sufficiency of the evidence, we are clearly of the opinion, that it is neither our province, nor our duty, to reverse the judgment of the trial court, merely because it may seem to us, from our reading of the record, that ‘the evidence in support of th'e finding is clearly and overwhelmingly or conclusively contradicted.5 55 This language is quoted with approval in Hudelson v. Hudelson (1905), 164 Ind. 694, 74 N. E. 504.

The appellant contends that the court erred in giving instructions Nos. 10, 18, 19 and 24 at the request of the appellee.

Appellee contends that no question is presented by the record relating to the giving of these several instructions, and calls onr attention to the fifth cause assigned in the motion for a new trial, which reads as follows: “The court erred in refusing to give each of the instructions numbered 5, 8, 9, 11, 12, 17, 19, and 21 respectively, requested by plaintiff.” This contention of appellee must prevail. The appellant is in no position to complain because the court refused to give an instruction tendered by the appellee. An attempt was made to bring the instructions into the record under §561 Burns 1914, Acts 1907 p. 652. Since neither the instructions tendered nor those given are signed by the judge as required by this statute, they are not in the record. Tell City Canning Co. v. Wilbur (1910), 46 Ind. App. 550, 93 N. E. 174; Bottorff v. Bottorff (1910), 45 Ind. App. 692, 61 N. E. 617.

It is finally claimed that the damages assessed are excessive. Both bones of the leg were broken about two and a half inches above the ankle. The ankle joint was involved, and resulted in a displacement of the foot. There was a permanent outward eversion of from fifteen to twenty degrees. The function of the ankle is about three-fourths normal, which will probably result in a flattened foot and an increase in the deformity. This case has been before two juries. On the first trial the damages were fixed at $3,000, while on the second trial they were placed at $2,000. This fact alone would seem to indicate that the jury did not act from prejudice, partiality or other improper motives in assessing’ the damages, and we cannot disturb their verdict. It was the exclusive province of the jury to fix the compensation to be awarded for the injury, and, in so far as we can, judge, they did so without the intervention of any improper motive.

The trial judge was in a better position to weigh the evidence than we are, and, if he thought the damages were excessive, it was his duty to grant a new trial, and by refusing to do so he has in effect said to us that he is of the opinion that the damages aré not excessive.

There was no error in overruling the motion for a new trial.

Judgment affirmed.  