Froman v. Jenner

2 Ind. App. 697

• Court: Indiana Court of Appeals
• Decided: November 27, 1894
• Docket: No. 1,355
• Status: Published

Opinion

Ross, J.

The appellant sued the appellees to recover damages for an injury alleged to have resulted from being struck in the back by a stone thrown by blasting in the appellee’s stone quarry.

Upon atrial, the jury returned a verdict'for the appellees. Appellant made a motion for a new trial, which was overruled, and judgment rendered on the verdict.

Filed Nov. 27, 1894.

It is very earnestly insisted that the verdict of the jury is not sustained by sufficient evidence; that the evidence establishes a case entitling appellant to damages.

When the evidence is uncontradicted, this court will review it and decide whether or not the verdict of the jury is sustained by-it, but wlien there is a conflict in the evidence upon any question essential to recovery, the right to determine that question is exclusively within the province of the jury, subject to review by the trial court, and their decision is binding on this court.

There are several issuable facts relative to which there is a sharp conflict in the evidence, namely, whether or not the appellees were guilty of negligence; whether or not the appellant was free from contributory negligence, and whether or not the injuries complained of were the result of being struck as alleged, or whether they originated from other causes.

Each and all of these questions were in issue, and a failure to prove, by a preponderance of the evidence, either that the appellees were negligent, that the appellant himself was free from contributory negligence, or that his injury was the result of appellees’ negligence, would not entitle appellant to recover.

The jury having decided against the appellant with this conflict in the evidence, we are compelled to infer it was because he did not prove these facts by a preponderance of the evidence.

Judgment affirmed.