The Chicago and Southeastern Railway Company v. Rader. make the appellant liable for the acts of the Midland. company. To enable us to determine the sufficiency of the evidence, we must be advised as to the questions at issue between the parties. This we can only learn from the pleadings. It is therefore essential that both complaint and answer should be brought into the record. Elliott's App. Proced., section 198; Sumner v. Goings, 74 Ind. 293; McCardle v. McGinley, 86 Ind. 538. The record in this case (p. 10, 1. 26) shows that an answer was filed at the proper time, but it was not on file when the transcript was prepared, and is not, therefore, set out in the record. What this answer was we can not know. It may have admitted the very matter which appellant now claims was not proved. It is well settled that the presumption in this court is in favor of the correctness of the action of the court below. It is incumbent upon the appellant to overthrow this presumption by bringing to this court a proper record affirmatively showing error, and that this error was at least probably prejudicial. Morningstar v. Musser, 129 Ind. 470; Darnell v. Sallee, 7 Ind. App. 581. There being no available error, the judgment is affirmed. Filed Oct. 9, 1894. The Board of Commissioners of Parke County v. Sappenfield. No. 1,217. THE BOARD OF COMMISSIONERS OF PARKE COUNTY v. SAPPENFIELD. APPELLATE COURT PRACTICE.-Sufficiency of the Evidence.-Recovery.Where there is some evidence fairly supporting every fact necessary to a recovery, the appellate tribunal will not interfere, although the preponderance of the evidence appears to be on the other side. DAMAGES.-Excessive.--Much Greater on Second Trial.-The fact that the amount of damages recovered on a second trial are much larger than that of the former trial, is not self-evident proof that the damages are excessive. INSTRUCTIONS TO JURY.-Modification.—An immaterial modification of an instruction can not amount to prejudicial error. From the Vigo Superior Court. J. Jump, J. E. Lamb, T. H. Davis and H. Daniels, for appellant. T. N. Rice and J. T. Johnston, for appellee. GAVIN, J.-The appellee sued the appellant to recover damages for injuries received by reason of appellant's negligent failure to erect and maintain suitable barriers. and railings upon a certain county bridge. A former judgment in appellee's favor was reversed by this court. Board, etc., v. Sappenfield, 6 Ind. App. 577. A subsequent trial resulted in another verdict and judgment for appellee. The only questions presented to us arise upon the motion for a new trial. We have examined the evidence, and find it to sustain the verdict in all essential respects. There is abundant evidence to justify the jury in finding negligence upon the part of appellant as the proximate cause of the injury, and freedom from fault by appellee. VOL. 10-39 The Board of Commissioners of Parke County v. Sappenfield. It is true there was evidence on behalf of appellant, which would have sustained a different result. It was the province of the jury to choose between the conflicting statements of the various witnesses pro and con. Where there is some evidence fairly supporting every fact necessary to the successful party's recovery, we can not set it aside, even though the preponderance of the evidence appears to be the other way. McDaneld v. McDaneld, 136 Ind. 603; Haines v. Porch, 9 Ind. App. 413. The evidence was sufficient to authorize the jury to find that the bridge was constructed over a natural watercourse, a "branch," as one of the witnesses styles it. Counsel argue that the damages are excessive because they are much larger than the former verdict. We do not think this position tenable, nor can we adjudge the damages excessive under the well established rule which requires that they should appear to be so grossly and outrageously excessive as to be the result of prejudice, partiality, or corruption. Sturgeon v. Sturgeon, 4 Ind. App. 232; Haynes, Spencer & Co. v. Erk, 6 Ind. App. 332. Some criticisms are offered to the instructions given by the court. None of them, however, appear to us well founded. Neither was there any error in the refusal of the instructions asked. Each instruction authorizing the jury to find for the plaintiff under the circumstances therein recited, was expressly conditioned upon the jury's finding that the negligent failure to provide the barriers caused the injury. They could not have failed to understand that this was an essential element of appellee's case. The fact that the conduct of the horses on the occasion in controversy may have been one proximate cause of the injury would not prevent the appellant from being liable Hanna, Administrator, v. Dunham. if their negligence was also a proximate and concurring cause of the injury. This proposition was decided when the cause was here before. So far as the matters included in these instructions were the law, they were covered in those given. Complaint is made of a modification of an instruction. which, however, "did not," as counsel state, "add to nor detract from the instruction as presented." Such a modification could certainly do no harm. We have considered all the objections to the record that have been made by the appellant's counsel, and are unable to find any cause for reversal. Judgment affirmed. Filed Oct. 12, 1894. 1,299. HANNA, ADMINISTRATOR, v. DUNHAM. DECEDENTS' ESTATES.-Administrator.-Confession of Judgment.-Costs. -An administrator has no power, except by permission of court, to allow judgment to go by confession, and, hence, an offer by the administrator, without leave of court, to confess judgment, can in nowise affect liability for costs. From the White Circuit Court. A. K. Sills and R. J. Million, for appellant. Ross, J.-The facts as we gather them from the record and briefs of counsel are that the appellee, in August, 1893, filed a claim for $1,046.75 against the estate of Robert Neel, deceased, of which estate appellant is administrator, and the claim not having been allowed, was transferred to the issue docket for trial. After the trans Hanna, Administrator, v. Dunham. fer to the issue docket, and long before it was called for trial, to wit, February 16, 1893, the appellant made an offer in writing, to allow judgment to go for the sum of $400 and costs. On the 9th day of March, 1893, the appellee, after trial by jury and the return of a verdict in his favor, recovered judgment for $325, and on the same day appellant moved the court to tax against the appellee all costs accrued subsequent to the date of the offer to confess. This motion was overruled by the court, and this ruling is the only question presented on this appeal. The appellee insists that the ruling of the court in overruling this motion was not an error for the reason that section 522, R. S. 1894, which provides that the defendant may, at any time before the trial, serve upon the plaintiff an offer in writing to allow judgment to go against him for the amount therein specified, with costs, is not applicable to the litigation of claims against decedents' estates; that the adjustment of such claims is regulated by the decedent's estate act, and an administration can not, after a claim has been placed upon the issue docket, allow it without the approval of the court. On the other hand the counsel for the appellant insist that section 522, supra, is applicable to cases against decedents' estates, and that if the claimant does not accept the offer to confess, and upon trial recovers less than the offer, he shall be taxed with all costs accrued subsequent to the time of making the offer. By section 103 of the act of September 19, 1881 (section 2327, R. S. 1881), an executor or administrator was empowered to allow judgment to go by confession against the estate which he represented, but this section was repealed by section 35 of the act of March 7, 1883 (Acts 1883, page 164). Section 2480, R. S. 1894, which provides that the trial of claims, which have been transferred to the issue |