Opinion
No. 17,609.
Filed December 3, 1947.
APPEAL — Evidence — Questions of Fact — Conflict of Evidence — Court Will Not Disturb Finding. — Where the only question presented on appeal is that the decision of the court was contrary to law, and there was a conflict in the evidence, as to what was proven, and reasonable men might have differed as to what was proven, judgment of the lower court where the case was tried without a jury, will be affirmed.
From the Allen Superior Court; Edward W. Meyers, Judge.
Action by Norbert Hake against Allen County for damages to plaintiff's automobile, sustained in a collision between an automobile driven by plaintiff, and defendant's truck. From a judgment for defendant on plaintiff's appeal from the disallowance of his claim for damages by the County Commissioners of Allen County, plaintiff appealed.
Affirmed. By the court in banc.
Arthur H. Fruechtenicht, of Fort Wayne, for appellant.
Barrett, Barrett McNagney and Otto E. Grant, Jr., all of Fort Wayne, for appellee.
Wayne Trace is a public preferential highway in Allen County which runs in a general north and south direction. It is intersected by Monroeville Road which runs in a general east and west direction. There is a stop sign warning traffic on the Monroeville Road to stop just west of the point where it intersects with Wayne Trace. On or about August 28, 1945, appellant was driving his Plymouth sedan north on Wayne Trace from a point south of said intersection. A highway truck of appellee was traveling in an easterly direction from a point west of this intersection. Appellant's sedan struck appellee's truck when said truck was about half way across the intersection. Appellant's automobile was badly damaged. Appellant filed his claim for damages to his automobile with the County Commissioners of Allen County who disallowed the claim, and said cause was appealed to the Superior Court of said County. There the cause was tried without the intervention of a jury. Decision and judgment in favor of appellee.
The error assigned here is the overruling of appellant's motion for a new trial. The only specification of that motion which presents a question here is, that the decision of the trial court is contrary to law. McKee v. Mutual Life Ins. Co. of New York (1943), 222 Ind. 10, 51 N.E.2d 474.
Appellant contends the evidence in this case without conflict leads inescapably to the sole conclusion that the judgment should have been in his favor. We do not agree with appellant's contention. There is a conflict in the evidence. Reasonable men might have differed in their conclusions as to what it proved. Therefore, the judgment must be affirmed.
NOTE. — Reported in 75 N.E.2d 674.