1. EVIDENCE — Weight and Sufficiency — Determination by Jury. — The weight to be given oral testimony is ordinarily to be determined by the jury, and this was true even where plaintiff's own testimony of the injuries he sustained was uncontradicted. p. 36.
2. WITNESSES — Credibility of Witnesses — Factors Considered by the Jury — Interest of Witnesses — Bias and Prejudice of Witnesses — Recollection of Witnesses — Manner of Testifying. — Among the factors that may be considered in determining the credit to be given the testimony of a witness are the interest of the witness, if any, in the outcome of the trial; his bias and prejudice, if any; his opportunity for knowing and recollecting the facts about which he testifies; the probability or improbability of his testimony; and his demeanor on the witness stand. p. 36.
3. APPEAL — Evidence — Conflicting Evidence — Jury to Weigh Evidence — Appellate Court Will Not Disturb Verdict. — Where there was a sharp conflict in the evidence as to whether appellant sustained compensable injuries, the Appellate Court would not disturb the verdict of the jury on this question. p. 36.
4. TRIAL — Instructions — Refusal To Give Instructions — Instructions Already Given. — There was no harm in trial court's refusal of tendered instructions, where their subject matter was adequately covered in other instructions given. p. 36.
5. TRIAL — Instructions — Refusal To Give Instructions — Not Pertinent to Issues — Effect. — There was no error in trial court's refusal of tendered instructions relating to fraud where there was no issue of fraud in the case. p. 36.
6. APPEAL — Presentation in Lower Court of Grounds for Review — Misconduct of Counsel — Error in Admission of Evidence — Such Errors Must Be Presented in Motion for New Trial — No Question Presented upon Appeal. — Where questions concerning prejudicial conduct of counsel and the admission of certain evidence were not properly presented to the trial court in the motion for new trial, such questions could not be considered on appeal. p. 37.
7. APPEAL — Determination — Amount of Recovery — Failure to Assess Nominal Damages — Appellate Court Will Not Reverse Judgment. — A judgment will not be reversed for a failure to assess nominal damages. p. 37.
ROYSE, C.J.
Appellant brought this action against appellees to recover damages for personal injuries allegedly sustained by him and for loss of services and consortium of his wife by reason of personal injuries allegedly sustained by her. Appellant and his wife were passengers for hire riding in a bus of appellee Chicago Calumet District Transit Company, Inc., which collided with a train of appellee Indiana Harbor Belt Railroad Company on the tracks of appellee Elgin, Joliet Eastern Railway Company. The complaint is in two paragraphs. The first charges appellees independently with negligence in several particulars which resulted in appellant's injuries. The second charges the same acts of negligence caused loss of services, medical expenses, etc., by reason of injuries sustained by his wife. Trial to a jury resulted in verdict in favor of appellees. Judgment accordingly.
The sole error relied on here is the overruling of appellant's motion for a new trial.
The appellant first contends the verdict of the jury is contrary to law because the evidence can lead to but one reasonable conclusion, viz., that appellant and 1-3. his wife sustained personal injuries while passengers for hire on a common carrier by reason of the negligent acts of the appellees. We do not agree with this contention of appellant. He asserts that his own testimony of the injuries he sustained is uncontradicted and therefore the verdict of the jury is contrary to law. In cases such as this the weight to be given to oral testimony is ordinarily to be determined by the jury. Among the factors that may be considered in determining the credit to be given the testimony of a witness are: The interest of the witness, if any, in the outcome of the trial; his bias and prejudice, if any; his opportunity for knowing and recollecting the facts about which he testifies; the probability or improbability of his testimony; and his demeanor on the witness stand. McKee v. Mutual Life Insurance Company of New York (1943), 222 Ind. 10, 15, 51 N.E.2d 474; Scoopmire v. Taflinger et al. (1944), 114 Ind. App. 419, 431, 52 N.E.2d 728. We do not believe it would serve any good purpose to set out herein the evidence in this case. In our opinion there was a sharp conflict in the evidence as to whether appellant sustained compensable injuries. Therefore, we cannot disturb the verdict of the jury on this question. Arlington v. Brown (1947), 117 Ind. App. 535, 73 N.E.2d 774.
It is next contended by appellant that the trial court erred in refusing to give to the jury each of his tendered instructions numbered one to eight. Without determining whether 4, 5. appellant's instructions one, two, three, six, seven and eight were proper as tendered, there was no harm in refusing them because their subject-matter was adequately covered in other instructions given by the court. There was no error in refusing to give tendered instructions four and five, which related to fraud, because there was no issue of fraud in this case.
Appellant raises other questions regarding what he asserts was prejudicial conduct of appellees' counsel at the trial, and error in the admission of certain evidence. However, these 6. questions were not properly presented to the trial court in the motion for a new trial. Therefore, we cannot consider them.
Judgment affirmed.
Crumpacker, J. — Not participating.
ROYSE, C.J.
ON PETITION FOR REHEARING
ROYSE, P.J.
In his petition for rehearing appellant contends we did not pass on the issues presented by his second paragraph of complaint, which asked damages for loss of his wife's 7. services and consortium. In our original opinion we stated that because of the conflict in the evidence as to whether appellant had sustained compensable injuries we could not disturb the verdict of the jury. We adhere to that statement. However, as to appellant's right to recover on his second paragraph, even if we consider only the evidence most favorable to appellant, he would at most be entitled only to nominal damages. We will not reverse for a failure to assess nominal damages.
The petition for rehearing is denied.
Crumpacker, J. — Not participating.
NOTE. — Reported in 82 N.E.2d 270; opinion on Petition for Rehearing reported in 83 N.E.2d 52.