On Petition for Rehearing
Achor, J.In 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.
*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.
Appellant 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.”
Appellant 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.
*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.
Applying 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.
The 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.
The 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.
Royse, J., dissents.Note.—Reported in 119 N. E. 2d 20.
Rehearing denied 121 N. E. 2d 435.