29 Ind. App. 579 | Ind. Ct. App. | 1902
Appellees filed a petition with the auditor of Marion county praying for the location and construction of a public highway. Appellants, Benard and Benard and Boberson and Bobm'son, whose lands would be affected by the proposed highway, appeared before the board of commissioners and moved to dismiss the petition upon the ground that the board did not have jurisdiction over the subject-matter, which motion • was overruled. Viewers were appointed, who reported favorably. Thereupon the saíne parties who moved to dismiss the petition remonstrated against the proposed highway on the ground that it would not be of public utility. Beviewers were appointed, who reported that they found that the proposed highway would be of public utility, which report was approved. Appellant John B. Benard filed in the office of the auditor his remonstrance for damages, which, on motion of appellees, was ordered stricken from the files. The ground upon which this remonstrance was stricken from the files was that it was filed too late. Such proceedings were had as that the board of commissioners ordered said proposed highway laid out and constructed. Erom this final order the two Benards and the two Bobersons appealed to the circuit court. On appeal to the circuit court, appellant
The next question discussed by counsel is the overruling of the motion of appellant John B. Eenard to dismiss the petition on the ground that by his affidavit in support of the motion it is shown that he did not have a fair and impartial trial before the hoard of commissioners. By his affidavit it is shown that Henry L. Harding was a member of the board when these proceedings were pending before it; that he owned real estate that would be affected by the improvement; and that he unduly influenced the other members of the board. This court determines a case upon the record. As the record comes to us it affirmatively appears that all the proceedings before the board of commissioners were heard and determined by John McGregor and James E. Greer, the other two members of the board. The record contains this entry: “And it having appeared before this matter came on for hearing that Henry L. Harding, one of the members of this board, has lands which may be affected by the said proposed new highway, he declined to act in the matter and withdrew from the board while the same was presented,” etc. The record therefore shows that Mr. Harding did what it was his duty to do, — declined to participate in the q>roceedings, — and all orders were made by the remaining members of the board. Ho facts are stated in the affidavit that can be considered to contradict the record. But aside from this, appellant Eenard has not put himself in a position to have the 'question now under consideration, deni ded. His motion to dismiss was his sep
Appellants insist that the motion for a new trial should have been sustained, (1) because the verdict upon the subject of damages “was rendered in utter defiance of the evidence.” We have examined the evidence on the question of damages and find it conflicting. It was the province of the jury to -determine from the evidence whether or not appellants were entitled to damages on account of the location of the highway, and they resolved the question against them. There is ample evidence in the record to support the conclusion reached, and, under the rule which forbids us to weigh the evidence where it is conflicting, we can not disturb the verdict’. Appellants also insist, under their motion for a new trial, (2) that the verdict is contrary to law. Counsel have not furnished us with any argument that convinces us that the verdict is contrary to law. In determining the question of damages growing out of the location of a public highway, the benefits accruing to real estate affected by establishing and opening such highway may be considered, and set off against any damages resulting. If the benefits equal or exceed the damages, there can be no recovery for the latter. Hagaman v. Moore, 84 Ind. 497; Sidener v. Essex, 22 Ind. 201; Forsyth v. Wilcox, 143 Ind. 144; Burk v. Simonson, 104 Ind. 173, 54 Am. Rep. 304. Under the evidence the jury could, and doubtless did, find that the benefits equaled or exceeded the dam
Appellants claim that the trial court erred in admitting, over their objections, certain evidence. The evidence complained of was competent, at least, for the jury to consider in determining the question of public utility, and was therefore admissible. It would unnecessarily lengthen the opinion to set out in substance this evidence, and discuss it in detail, and it could serve no useful purpose. Taking the evidence as a whole it fairly sustains the verdict on every point, and we do not find any reversible error in the admission of any of the evidence of which appellants complain.
In a brief subsequently filed, by leave of the court, after the expiration of the time fixed by rule twenty-one of this court, counsel urge that two instructions given by the court were erroneous. That part of instruction number three, of which complaint is made, is as follows: “If, after considering all the evidence in the case, you shall find that the evidence upon any question is equally balanced, you should answer such question against the party who has the burden of such issues, for in such case there would be no preponderance in favor of such proposition.” The rule prevails that a plaintiff must prove the material averments of his complaint by a fair preponderance of the evidence, and the same rule applies to the defendant as to all matters of affirmative defense. It must logically follow that if, upon any material question pleaded, the jury or court should arrive at the conclusion that the evidence is evenly balanced, then the party having the burden of such question must' fail, for he has not established it by a preponderance of the evidence. This is what the court told the jury, and it was applicable both to appellants and appellees alike. It was not error so to instruct the jury.
In the latter part of instruction number four the court told the jury that in passing upon the evidence and determining the credibility of witnesses, they might call to their aid their knowledge of men and their actions, which in their experience they had acquired by mingling with men. It is the sole province of the jury to determine the credibility of witnesses. The law recognizes many tests or rules that may be applied. The knowledge and judgment of men which is acquired by association with them in business, socially or otherwise, is an important element which may greatly aid jurors in determining their truthfulness and credibility as witnesses, and the court did not err in'so instructing the jury.
We do not find any reversible error. Judgment affirmed.