We found and held, as did the trial judge, that the testimony in this case clearly established that rim strips were not classed as standard equipment of the 1934 model Oldsmobile cars, and, therefore, defendants omitted no duty due to plaintiff by not inserting such a strip in the rear wheel of his car at the time new casings were placed thereon. Having reached this conclusion on the question of fact, it inescapably followed that defendants were in no respect responsible to plaintiff in damages for the injuries sued for.
The application for a rehearing primarily challenges the correctness of our findings in the respects mentioned. It is supported by affidavits of persons in a position to know the facts about which they swear, who declare that the wheels of cars of the kind and character of plaintiff's were, in 1934, invariably equipped with rim strips to protect the tube, and that such equipment was standard.
In passing, we confess that had these affiants given testimony in the case in keeping with the contents of their sworn statements, our conclusion on the question of fact mentioned would most probably have been different.
We are asked, in the alternative, to grant a rehearing in the case and to remand it for the purpose of allowing the reception of further testimony.
To arrive at the conclusion upon which our opinion was primarily based, to-wit: absence of any negligence on the part of defendants for omitting to incorporate a rim strip in the right rear wheel of the car, we necessarily had to study the entire mass of testimony contained in this voluminous record. We reached the conclusion then and have experienced no change thereof, that should it be held that defendants or any of them owed to plaintiff the duty to place the rim strip in the wheel when the new casing was mounted thereon, the ultimate result of the case would be the same. We do not believe that the testimony establishes with any degree of certainty causal connection between the absence of the rim strip and the accident; nor do we believe such connection, in view of all the undisputed facts of the case, is provable to that degree of certainty to justify a court to base a judgment upon. Supporting what we here say, it is pertinent to add that this car and its inner tubes had been in constant service for sixteen months and had traveled 10,000 miles or more. The "blow-out" occurred the evening of a hot day, after a drive of some 200 miles, when the car was moving at a very rapid rate down grade. The failure of the tube, in view of these facts and conditions, may be reasonably accredited to one or more of several different causes, *Page 580 none of which is susceptible of definite proof.
All things considered, we perceive of no good reason for granting a rehearing herein and, therefore, application therefor is refused.