Louisville & Nashville Railroad v. Thomas' Administrator

Eesponse by Judge Clarke to Petition oe Appellant e©r a Eehearing. Since the opinion herein was rendered, the Supreme Court of the United States has reversed judgments of this court in the cases of C. & O. Ry. Co. v. Kelly’s Admr., and C. & O. Ry. Co. v. Gainey, 241 U. S. ............, 36 Sup. Ct. Rep. 630 and 635, upon the ground that the measure of damages in those actions, under the Federal Employers’ Liability Act, was not correctly defined. The instruction herein did not limit a recovery to the present value of future contributions by decedent to his dependent parents, and upon that question is substantially the same as those disapproved in the above cases, and this is an action under the same act, but the instruction given in this case was substantially the same upon the question involved as the one offered by appellant, and the question raised and upon which the judgments of this court were reversed by the United States Supreme Court in the two eases referred to above, was not in any way suggested or presented upon the trial of this case. The instruction given by the trial court being the same in substance upon the question involved as the one offered by appellant, it cannot under our practice complain here. C., St. L. & N. O. R. Co. v. Hollis, 91 S. W. 258; Louisville Water Co. v. Phillips, 139 Ky. 614; Central Traction Co. v. Combs, 143 Ky. 529; Camden Interstate Ry. Co. v. Lester, 118 S. W. 268: L. & R. R. Co. v. Hardin, 117 S. W. 381. The petition for a rehearing is overruled.'