Louisville & Nashville Railroad v. Stewart's Administratrix

Opinion of the Court by Judge Turner Response to Petition for Modification and Rehearing. Appellant’s petition for a modification of the opinion insists that the language used by the court in discussing whether the conductor Jones was negligent may be interpreted by the lower court upon a new trial as definitely determining that the conductor was negligent, so that the parties might be precluded upon another trial from introducing evidence upon that subject. But such was not the purpose of the court; it was merely intended to point out that there was sufficient evidence of negligence upon the part of the conductor to authorize the submission of the case to the jury. Overlooking for the instant that this case was tried under.the Federal Employers’ Liability Act, and by reason of the haste and confusion incident to the closing day [643] of a term of this court, the Kentucky rule as to the measure of damages was incorrectly directed to be given on another trial instead of the measure of damages prescribed by the Federal Statute. Upon a new trial the measure of damages will he given under the Federal Statute as construed by the Supreme Court of the United States, all of which is carefully gone into and pointed out in the case of C. & O. Ry. Co. v. Dwyer’s Admx., 157 Ky., 590. To the extent indicated the opinion is modified, and the petitions for modification and rehearing in all other respects are overruled.