Creekmore s&sBuhl, Knoxville, Tenn., for plaintiff in error.
Poore, Cox, Bakers&sMcAuley, Knoxville, Tenn., for defendants in error.
Petition for rehearing has been filed in this cause and the following statement of our former opinion is criticized: 'The plaintiff, her brother, and her mother, testified that the grating was displaced and lying diagonally across the opening, above the floor, and not fitted into its proper place.' [225 S.W.2d 539, 541]
In the petition it is admitted that on her direct examination, the mother testified as we stated, but it is insisted that on her cross-examination her testimony as to the position of the grating was weakened and she admitted that she was influenced in her testimony by her children's statements. Clearly, this presented a question for the jury whose province it was to determine the weight to be given the mother's testimony and her credibility as a witness.
In any event, it would be immaterial to the result, if the testimony of the mother was stricken from the record because the testimony of the plaintiff and her brother about the removal of the grating would still have necessitated the submission of the case to the jury.
Next, the following statement from our former opinion is criticized: 'The plaintiff further testified that it was too dark for her to see in the aisle, and that the lights, though installed, were not burning at the time. The plaintiff's brother corroborated this testimony.'
To support the argument against this statement it is insisted that because the plaintiff put her sister on the stand and the sister testified that she did not remember whether the lights were burning in the aisle or not, that, therefore, the positive testimony of the plaintiff and her brother, that the lights in the aisle were not burning, was nullified and that there remained after the sister's testimony, no issue to go to the jury. Of course, no authority is submitted to support this novel proposition. The fact that the sister did not remember, is negative testimony and does not contradict the testimony of the plaintiff and her brother. That testimony remained to create the issue which the Trial Judge properly submitted to the jury.
The remainder of the petition is taken up with reargument and reiteration of argument on the weight of the testimony which we fully considered in our former opinion. Such reargument does not warrant a rehearing. Rule 32, 185 Tenn. 879; Louisvilles&s N. R. Co. v. United States Fidelitys&sGuaranty Co., 125 Tenn. 658, 691, 148 S.W. 671.
After carefully considering the petition for a rehearing, we are satisfied with the result reached, and the petition to rehear is denied.