The questions argued by the appellant’s counsel arise on the ruling denying a new trial, but the argument is unavailing, for the reason that the evidence is not in the record.

It is incumbent on the appellant to affirmatively show that the trial court erred in refusing instructions, and this can not be done in such a case as this unless the evidence is in the’ record, for we can not say that they were not properly refused because not applicable to the evidence; nor can we say, in the absence of the evidence, that the instructions given were erroneous, for there might have been a case under the *47issues in which they would have been entirely proper. New v. New, 95 Ind. 366.

Judgment affirmed.