NEUGEBAUER V. MARLIN 1070 Cite as 268 Ark. 1070 (Ark. App. 1980) [268 Randy NEUGEBAUER v. Harold MARLIN, Tony MARLIN, Ricky MARLIN, d/b/a CITY IRON AND METAL CA 79-312 598 S.W. 2d 446 Court of Appeals of Arkansas Opinion delivered April 23, 1980 Released for publication May 14, 1980 I. APPEAL & ERROR—SUFFICIENCY OF EVIDENCE FIRST CHALLENGED ON APPEAL. — Where appellant makes no objection to the verdict of the trial court, nor does he seek relief before the trial court, he cannot challenge the sufficiency of the evidence for the first time on appeal. 2. APPEAL & ERROR — DETERMINATION OF CREDIBILITY RESPONSIBILITY OF JURY — DISPUTED QUESTIONS OF FACT. — An appellate court cannot weigh the evidence to determine upon
NEUGEBAUER V. MARLIN ARK.] Cite as 268 Ark.' 1070 (Ark. App. 1980) 1071 which side the preponderance lies, or to substitute its judgment for that of the jury, as it is the responsibility of the jury to determine credibility, and to settle disputed questions of fact. 3. DAMAGES — QUESTIONS OF FACT FOR JURY — JURY VERDICT BINDING WHERE TESTIMONY IS CONFLICTING. — In the case at bar, although the jury resolved the issue of negligence in favor of appellant, the jury evidently did not believe that appellant was injured to the extent that he claimed and, where the issues of negligence and damages have been submitted to the jury upon conflicting testimony under instructions not questioned on appeal, appellant is bound by the verdict. Appeal from Poinsett Circuit Court, Harrell Simpson, Judge; affirmed. Wayne Mooney, for appellant. Berl S. Smith, of Barrett,. Wheatley, Smith & Deacon, and James A. McLarty, of Pickens, Boyce, McLarty & Watson, for appellees. JAMES H. PILKINTON, Judge. Randy Neugebauer, the appellant, was injured while a passenger in a pick-up truck which was struck from the rear by a trailer truck belonging to appellees, Harold Marlin, Tony Marlin and RiCky Marlin, d/b/a City Iron and Metal. Appellant as plaintiff below claimed certain special damages, and also sought to recover for alleged personal injuries. The case was tried before a jury which rendered a verdict for appellant in the amount of $2,- 500. Appellant was dissatisfied with the amount of the verdict and brings this appeal. Thus appellant asks this court to reverse a judgment, entered for him in a negligence case, on a jury verdict as not being supported by substantial evidence. Appellees point out that appellant did not make any objection to the verdict in any form or seek relief before the trial court; and claim that appellant cannot now challenge the sufficiency of the evidence for the first time on appeal. Appellees • are of course correct in that position. See Ark. Stat. Ann. § 27- 2154 (Repl. 1979); Turkey Express, Inc. v. Skelton Motor Company, 246 Ark. 739,439 S.W. 2d 923 (1969); Rock-Ola Mfg. Corp. v. Farr, 226 Ark. 279, 290 S.W. 2d 2 (1956); and Granite Mt. Rest Home v. Schwarz, 236 Ark. 46, 364 S.W. 2d 306 (1963). However, the testimony las been fully abstracted and it is clear there was sufficient evidence for the jury to conclude that although the defendant was negligent, the plaintiff had only
1072 [268 proven damages athounting to $2,500. This court cannot weigh the evidence to determine upon which side the preponderance lies, or to substitute its judgment for that of the jury. It is the responsibility of the jury to determine credibility, and to settle disputed questions of fact. In this case the jury did resolve the issue of negligence in favor of the appellant. Notwithstanding that fact, the jury evidently did not believe that the plaintiff-appellant was injured to the extent he claimed. In any event, it is apparent that a fact question on the issue of damages was made for jury determination. The issues of negligence and damages having been submitted to the jury upon conflicting testimony, and under instructions which are not questioned on appeal, appellant is bound by the verdict. . Affirmed.
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