¶1Dissenting Opinion
¶2I cannot agree with the majority opinion in this case. Appellee had the burden of establishing by a fair preponderance of evidence with probative value that appellant was guilty of at least one of the acts of negligence charged in his complaint and that his injuries were the proximate result of said negligence. I do not believe the evidence in the record, as accurately set out in the majority opinion, shows that appellee sustained the burden upon him necessary to sustain the judgment herein.
¶3In fact it seems to me the majority opinion, in effect, recognizes this to be true when they say:
*125“It is appellant’s position that the evidence leads inescapably to the conclusion that the collision occurred within the intersection, with appellant approaching to the appellee’s right and he to appellant’s left, under which circumstances appellant had the right-of-way. This theory was also supported by appellee’s own testimony, that he was ‘about half way into the intersection’ when he first saw appellant, that the collision occurred ‘almost instantly’ and that his car. was in ‘Wall’ street following the collision. If the collision occurred in the above manner, we seriously question the sufficiency of the evidence to support the judgment. Appellee also testified in irreconcilable conflict with the above testimony that the collision occurred ‘about 10 feet south of the crosswalk on the south side of Wall street.’ Under the undisputed facts previously stated, we concur with appellant that it would have been physically impossible for the collision to have occurred in the place and manner last recited.” (My emphasis.)
¶4To overcome this the majority relies on the statement of one witness (Mary Wallace) who came upon the scene after the collision occurred. How long after is not disclosed. Nor does this evidence indicate the automobiles were then in the same position as when the accident occurred.
¶5I believe the interests of justice require a new trial in this case.
¶6On Petition for Rehearing
¶7In her petition for rehearing, appellant relies basically upon two major contentions. The first is that there is no evidence of probative value to support the conclusion that appellee’s injuries resulted from the collision between the parties.
¶8*126*125As indicated in our original opinion, appellee’s testimony is characterized by numerous conflicts therein *126which imposed upon the trial court a difficult task of determining the weight of credibility of his testimony. However, within appellee’s conflicting testimony, there is evidence and reasonable inferences drawn therefrom that appellee’s injuries resulted from the collision involved. Whether or not this court, on the basis of appellee’s recorded testimony, might have arrived at a contrary conclusion is not for this court to decide. Our courts have not varied from the position that trial courts, sitting without jury, as triers of the facts are exclusive judges of the weight of the evidence and of the credibility of witnesses and, in the presence of some evidence in support of the finding, a court of appeal cannot substitute its judgment as to what facts were established by the evidence for that of the trial court. Bulen v. Pendleton Banking Co. (1948), 118 Ind. App. 217, 78 N. E. 2d 449; Clapham v. City of Huntington (1941), 109 Ind. App. 244, 32 N. E. 2d 118.
¶9Appellant contends secondly that she is entitled to a new trial for the reason that “without respect to any conflicting testimony, appellee’s own evidence with respect to the manner in which the injury occurred leaves it at best a matter of pure speculation whether it resulted (1) from the collision or (2) from the attempt to disengage the cars.”
¶10Appellant further asserts that if the injury occurred under the latter circumstances it was not, under the evidence, the proximate result of any negligence on the part of appellant for which appellant could be liable, but was the independent, voluntary and deliberate act of appellee himself, and was not an act made necessary by any emergency growing out of the collision, nor was it a sudden or spontaneous reaction to a real or imaginary situation of peril caused by the collision.
¶11*127To the above asserted circumstances appellant would have us apply the rule that evidence which is consistent with an hypothesis of negligence or proximate cause on the one hand, and also with an absence of such negligence or proximate cause on the other, establishes neither. Ewing v. Goode (1897), (C. C., S. D. Ohio), 78 Fed. 442; McCoy v. Buck (1927), 87 Ind. App. 433, 157 N. E. 456, 160 N. E. 46.
¶12Applying the above rule to the asserted facts, appellant concludes that although there was conflicting evidence by appellee consistent with the fact that the injury occurred during the collision as the proximate result of appellant’s negligence, such evidence could not be considered as establishing the fact for the reason that appellee’s testimony also supported the fact that injury resulted from lifting one of the cars following the collision, which injury was not under the evidence the proximate result of appellant’s negligence.
¶13The question of liability in event of injury resulting from lifting one of the cars following the collision was not discussed in our original opinion because the issue was considered as moot to a decision of the case, and we do not decide that issue now. Neither do we question the abstract rule of law relied on now by appellant. However, we find that the rule asserted is not applicable to the.facts before us. Here we do not have a circumstance of the same testimony supporting divergent hypothesis within the rule relied upon. Rather we are confronted with distinct and conflicting testimony which supported each of the divergent hypothesis. Appellee’s testimony that he suffered pain, nausea and blindness at the time of the collision and before he attempted to disengage the cars is consistent only with *128the hypothesis that the injury occurred as the result of the collision.
¶14The fact that the conflicting testimony came from the appellee himself did not negative the fact of its existence. It merely imposed upon the court, and the trial court alone, the duty of resolving these conflicts, weighing the- evidence and deciding the case accordingly. The trial court having rendered judgment upon the evidence before him, this court will not disturb his finding.
¶15Note.—Reported in 119 N. E. 2d 20.
¶16Rehearing denied 121 N. E. 2d 435.