
    New Orleans & N. E. R. R. Co. v. Scarlet.
    [83 South. 1,
    In Banc.
    No. 19342.]
    Master and Servant. Prima-facie statute not applicable tp' actions under Federal Employer’s Liability Act.
    
    Where suit is brought in a state court under the Federal Employer’s Liability Act bf April 22, 1908, chapter 149, 35 Stat. 65 (U. S. Comp. St., Sections 8657-8665),' Code 1906, section 1985, as amended by Laws 1912, chapter 215, mating injury to person or property by a railroad prima-facie evidence of negligence does not apply.
    Appeal from the circuit court of Clark county..
    Hon. E. W. Heidelberg; Judge.
    Suit by Joe Scarlet against New Orleans & Northeastern Eailroad Company. From a judgment for plaintiff, defendant appeals.
    The facts are fully stated in the opinion of the court.
    
      B. E. .& J. H. Thompson, Fulton Thompson and A. S. Bozeman, for appellant.
    
      Thos. G. Fewell and Chas. B. Cameron, for appellee.
   Ethridge, J.,

delivered the opinion of the court. -

Scarlet, the appellee, was a fireman on the New Orleans & Northeastern Eailroad, and while engaged in the performance of his duties was injured by being thrown down between the engine, and the tender; the fall being caused- by the breaking of a king-pin and safety chain fastening the tender to the engine. Suit was brought in the state court under the Federal Employers’ Liability Act. Act April 22, 1918, chapter 149, 35 Stat. 65 (U. S. Comp. St. sections 8657-8665). ” There was a recovery by the appellee, and an appeal to this court, in which the cause was affirmed. 115 Miss. 285, 76 So. 265. From this judgment of affirmance the cause was appealed to the United States supreme court, and reversed by that court because the trial court granted an instruction that the prima-facie statute of the state of Mississippi (section 1985, Code of 1906, as amended by chapter 215, Laws of 1912) applied, and because this court on the former hearing held that such instruction was proper. See N. O. & N. E. R. R. Co. v. Scarlet, 249 U. S. 528, 39 Sup. Ct. 369, 63 L. Ed.—; N. O. & N. E. R. R. Co. v. Harris, 247 U. S. 367, 38 Sup. Ct. 535, 62 L. Ed. 1167.

This case was decided in this court prior to the decision of N. O. & N. E. R. R. Co. v. Harris, supra, holding that the state statute did not apply to suits arising under, the Federal Employers’ Liability Act, and prior to the decision of N. O. & N. E. R. R. Co. v. Hanna, 78 So. 953, following said decision. Appellant now moves the court to reverse and remand the cause for a new trial in conformity to the decision of the United States supreme court, which is accordingly done.

Beversed and remanded.  