
    McFarland v. Chesapeake & Ohio Railway Company.
    (Decided December 21, 1917).
    JOHN T. DIEDRICH for appellant.
    WORTHINGTON, COCHRAN & BROWNING, and P. K. MALIN forappellee.
   Response to Petition por Rehearing by

Chiee Justice. Settle

Overruling petition.

For original opinion, see 177 Ky. 551.

Complaint is made by appellee in its petition for rehearing that this court made the mistake in its opinion of assuming that this action was brought under the-Federal Employers’ Liability Act. Conceding this to be-true, the mistake was one into which the court was. led by the briefs of counsel for appellant and appellee, as they discussed the case as one coming under that.. statute, and as there was no question of pleading raised by the record, the pleadings were not carefully scrutinized. The evidence and rulings of the trial court were,, however, carefully read and considered by the court. So, if, in point of fact, the recovery was sought under the law of this state and not under the Federal Statute, there is-nothing in the opinion that will-prevent a proper trial of the case under the state law. It other words, the-grounds of defense allowed by the opinion, under the-peculiar facts of this case, will be as permissible under the state law as the Federal statute.

The petition for rehearing is overruled.  