
    Chesapeake & Ohio Railway Company v. Harmon’s Administrator.
    (Decided March 23, 1917.)
    Petition for rehearing, modification and extension of opinion.
    HARKINS & HARKINS, WORTHINGTON, COCHRAN & BROWNING and F. T. D. WALLACE for appellant.
    MAY & MAY for appellee.
   Response to Petition for Rehearing, Modification and Extension of Opinion by

Judge Hurt

Overruling.

For original opinion, see 173 Ky. 1.

The question before this court in this case was, whether the appellee’s intestate, at the time of his death, was an employee of appellant and engaged in interstate commerce, so as to make appellant liable for damages on account of his death, in an action under the Federal Employers’ Liability Act. The conclusion arrived at was, that he was not. The recovery was sought solely under the provisions of that statute. Hence the conclusion that the motion for a directed verdict should have been sustained. Whether, under the facts stated, there was a cause of action for any reason under the common law of the state, was not before us then nor now and was not considered. It was not necessary for this court, in order for appellee to take advantage of his common law remedies, if any he has, upon the return of the case to the trial court, for this court, in advance, to determine such rights and their nature and to give any direction in regard to same, as such questions were in no way before us upon the record. The result of the decision does not preelude the appellee from seeking his remedy under the state law, if any he has, in accordance with the principles announced by this court in I. C. R. R. Co. v. Kelly, 167 Ky. 745; C., N. O. & T. P. Ry. Co. v. Tucker, 168 Ky. 149; and C., N. O. & T. P. Ry. Co. v. Hansford, 173 Ky. 126, upon the return of the case to the trial court..

Hence, the petition for rehearing, modification and extension of the opinion is overruled.  