In application for rehearing, counsel for plaintiff-appellant strenuously contends that we stated that only an issue of fact is presented in this case and that we were in error in so stating. Counsel maintains that the question of law which was involved was this: Where there is only one witness, plaintiff himself, to an accident, and he gives testimony which would entitle him to recover if not contradicted, that testimony must be accepted and a court may not refuse to accept it as true even where circumstantial evidence and physical facts show it to be untrue.

[1, 2] We decided that question of law against plaintiff, holding that under such circumstances a court is not bound to accept as true the testimony of plaintiff himself where circumstantial evidence and physical facts prove it to be untrue. We then held that, on the issue of fact which is presented, the circumstantial evidence and the physical facts preponderate, and we followed the District Judge in refusing to accept the unsupported testimony of plaintiff himself.

The rehearing requested is refused.

Refused.