Reports of Cases Decided in the Appellate Court of the State of Indiana (Volume 51)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1914. Excerpt: ... APPEAL--Continued. was injured was at the time of the injury in control of and being operated by defendant Cleveland, etc., R. Co. v. Colson, 225, 231 (9). 73. The court cannot weigh the evidence on appeal. lluber Mfg. Co. v. Blessing, S9, 97 (13). 74. A cause that was tried by a jury is not within the statute (5698 Burns 1908, Acts l903 p. 338) requiring the court on appeal to weigh the evidence and render such judgment as may seem right and proper. McConncll v. Ryan, 56, 57 (1). 75. Credibility of Witnesses.--The fact that appellee's evidence comes almost entirely from appellee and certain relatives is immaterial in determining the sufficiency of the evidence on appeal, since the court will neither weigh conflicting oral evidence nor determine the credibility of witnesses. McConncll v. Ryan, 56, 57 (2). 76. General Objection.--Where the only objection to the introduction of evidence is general, the overruling of the same is not erroneous. llouk v. Citizens Nat. Bank, 028, 031 (7). 77. Verdict.--A verdict for plaintiff will not be disturbed on ground of insufficiency of the evidence where there was some evidence to support every material allegation of the complaint. Indianapolis Foundry Co. v. Lackey, 175,186 ( 7). 78. Theory of Actio-n.--Where it appears that the case was tried below on the theory that certain evidence was within the issues tendered, the parties will be held to that theory on appeal. Weaver v. Brown, 379,3S5 (0). 70. Fraud.--Equity.--The rule that equity will regard that as done which in good conscience ought to Ite done, in order to prevent injury to another through fraud and deceit, cannot be extended to work a reversal of a judgment for appellee in an action on a benefit certificate, where there was no evidence that appellee had frau...