New York, Etc., R. Co. v. Iddings, Admx.

McMahan, J. This is an action for the death of appellee’s decedent, Scott Iddings, who was killed by reason of a motor truck in which he was riding being struck by one of appellant’s trains at a street crossing in the city of Kendallville. There was a verdict and judgment in favor of appellee for a substantial amount. The only error assigned is that the court erred in overruling appellant’s motion for a new trial. Under this assignment, appellant first insists that the verdict is not sustained by sufficient evidence. This is based upon the contention that the evi *223 dence conclusively shows as a matter of law that the decedent was guilty of such negligence as prevents a recovery. Appellee, however, calls attention to the fact that the evidence is not all in the record, and, under the well-settled law of this state, this court will not consider the sufficiency of the evidence to sustain the verdict of the jury or the finding of the court when all of the evidence is not in the record. Chicago, etc., R. Co. v. Public Service Commission (1918), 188 Ind. 334, 340, 121 N. E. 276, 123 N. E. 465. Appellant also contends that the court erred in refusing to give certain instructions. In answer to this contention, it suffices to say that, in the absence of the evidence, it will be presumed that the instructions were refused because not applicable to the evidence. Baxter v. Baxter (1910), 46 Ind. App. 514, 521, 92 N. E. 881, 1039. Judgment affirmed.