Cincinnati, N. O. & T. P. Ry. Co. v. Goode

• Decision Date: 07 October 1913
• Citation: 155 Ky. 153,159 S.W. 695
• Parties: CINCINNATI, N. O. & T. P. RY. CO. et al. v. GOODE.
• Court: Kentucky Court of Appeals

159 S.W. 695

155 Ky. 153

CINCINNATI, N. O. & T. P. RY. CO. et al. v. GOODE.

Court of Appeals of Kentucky.

October 7, 1913

On petition for rehearing. Former opinion modified, and petition denied.

For former opinion, see 153 Ky. 247, 154 S.W. 941.

CARROLL, J.

The opinion in this case may be found in 153 Ky. 247, 154 S.W. 941. Under the facts of this case as they were developed in the evidence, appellee was engaged in interstate commerce when he received the injury complained of. See opinion of Supreme Court of United States in Pedersen v. Delaware, L. & W. R. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, handed down May 26, 1913, and St. L., S. F. & T. R. R. Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, decided by the same court on the same date.

But the case, as made up in the lower court by the pleadings, evidence, and instructions, was practiced under the rules of law prevailing in this state and not under the federal statute known as the Employer's Liability Act, and we do not see our way clear, in the condition of the record as it now stands, to define the rights of appellee or the liability of the appellants under the federal statute. But on the return of the case the court will permit the parties to tender and file such amended pleadings as they may desire and will hear and adjudge the case under the federal statute and in accordance with the rules of law and practice applicable thereto. This direction, however, is not to prejudice the rights of the railroad company to make and rely on any defense it may have.

So much of the opinion as directs that a peremptory instruction be given had reference to a trial under the state law and is withdrawn, but this is not to preclude the trial court from giving such an instruction on a retrial, if it is proper to do so. See opinion of the United States Supreme Court in Norfolk & Western Railway Co. v. Earnest, 229 U.S. 114, 33 S.Ct. 654, 57 L.Ed. 1096, handed down May 26, 1913.

With this modification, the petition for a rehearing is overruled.