
    No. 24,285.
    George O. Limbaugh, Appellee, v. Charles E. Schaff, as Receiver, etc., Appellant.
    
    Appeal from Bourbon district court; Edward C. Gates, judge.
    Opinion denying a rehearing filed October 10, 1923.
    (For original opinion of reversal see ante, p. 24.)
    
      W. W. Brown, of Parsons, and Douglas Hudson, of Fort Scott, for the appellant.
    
      A. M. Keene, and Harry W. Fisher, both of Fort Scott, for the appellee.
   OPINION DENYING REHEARING.

The opinion of the court was delivered by

Burch, J.:

A petition for rehearing has been filed, the burden of which is, this court believed certain testimony, disbelieved other testimony, gave more weight to defendant’s evidence than to plaintiff’s, and decided the case accordingly. The syllabus and the opinion are clear refutations of the charge. The decision was rested solely and explicitly on the findings of fact. In preparing the opinion, it was necessary to choose between methods of stating the case. The difference between the parties was literally the difference between daylight and darkness, and the court chose to present the most important evidence in behalf of each. Out of the conflict in the evidence emerged findings of fact which covered the material features of the case, and in the course of the opinion these findings were given their proper relation to the issues and the evidence. The court then proceeded to dispose of the case on the findings of fact.

Assuming the court weighed the evidence, the petition challenges the court’s statement of evidence in certain particulars. It is said recital of plaintiff’s testimony regarding the time of the accident is not correct. The recital follows faithfully the abstract and the counter abstract. The question is asked why the court did not quote the testimony of the fireman, that he could not see the automobile. until he did see it. There is no such testimony in the abstract or the counter abstract. These matters are referred to simply in the interest of accuracy.

In the enumeration of grounds for rehearing, the petition charges the court with erroneous calculation under the fourth finding of fact. Discussing this ground, the petition merely says the evidence proved the train was not in the range of vision. Correctness of the computation itself is not disputed. The computation was based on the undoubted fact the train and the automobile met on the crossing. That being true, it was a simple matter to demonstrate plaintiff could have stopped in a place of safety after the train came into view.

Nothing else contained in the petition is of sufficient importance to require special mention.

The petition for rehearing is denied.  