OPINION ON PETITION TO REHEAR. A commendably brief and direct petition to rehear is presented. It is asserted, with perhaps unnecessarily dogmatic assuredness, that settled rules governing jury trials have been "overlooked" and disregarded. While the petition can hardly be said to meet the rule requirements of new argument and authorities, its earnestness induces this brief response.
It is erroneously assumed that the determinative issue of Norman's intervening agency was decided on "inferences" only and that the court has adopted these inferences which are unfavorable to the plaintiff, contrary to the rule. The premises of this argument are wanting. The opinion of the court — not of one member of it, as improperly treated by petitioner — was not rested on inferences, but upon direct and undisputed testimony, not only that of Norman, as erroneously assumed, but of others which clearly showed that Norman was an employee of such a character, with such duties and responsibilities as to render it inescapable that he was advised and informed concerning the furnishing of this auxiliary safety catch, the necessity for it and its purpose. This we emphasized in the opinion as a material fact overlooked by the Court of Appeals. It was with this supporting background of circumstantial evidence that we weighed the testimony of Norman that he "knew about this auxiliary catch", and that the reason he did not put one on his car was because he did not want it there. *Page 406 The fact could hardly be more clearly proven that he was "conscious" of the situation and conditions obtaining. "Conscious" means knowing. When knowledge is shown to have been necessarily brought home to one and he himself testifies that he "knew about it" there is no room left for inference as to his knowledge.
This question was carefully considered and discussed in detail and our views fully set forth in the opinion and we can do no better than refer petitioner to what has been there said in support of our settled judgment.
Petitioner challenges our acceptance of the testimony of witness Norman and argues that this testimony was contradicted by that of witness Baxendale, for the plaintiff, with respect to the number of miles the car had been driven by Norman, as indicated by the speedometer, before its sale to Baxendale. Conceding, but not agreeing, that this apparent discrepancy should be resolved in favor of Baxendale for the reasons assigned, the discrepancy is not with respect to a matter material to the decision and petitioner is mistaken in assuming that the court so considered it.
It is also argued that an unfavorable "inference" should have been given effect against the defendant on the theory that the defendant failed to interrogate this witness about facts peculiarly within his knowledge and material to the defense. While it is true that a more exhaustive examination might well have been made of this witness, we are of opinion, as already indicated, that the essential and material facts of his connection and of his knowledge were developed, and there is no reason to assume that further examination would have disclosed any facts or circumstances tending to disprove that to which he had testified. *Page 407
In the opening paragraph of the petition it is said that "Petitioner realizes that courts do not like to have petitions to rehear filed"; also, that "The Court being human does make errors," etc. While readily conceding the truth of this second observation, it must be apparent to counsel that laborious consideration has been given this case and that the best judgment of this "human" court has been bestowed upon it. It is not possible for us to do more, or always to satisfy counsel. But, if it is intended to imply by the first quoted observation that the court receives petitions to rehear, for which provision is expressly made by our rules, with impatience and any degree of resentment, the quoted comment is without foundation.
The petition is dismissed. *Page 408