
    Jones v. Chesapeake and Ohio Railway Company.
    (Decided April 23, 1913.)
    Appeal from Lewis Circuit Court.
    Opinion — Passing on Question Which. It Was Unnecessary to Decide— Withdrawal of Part of Opinion. — Where the opinion in a case passes on a question which it was unnecessary to decide in the case as presented, it is proper to withdraw so much of the opinion as applies to questions unnecessarily decided. (For former opinion, see 149 Ky., 566).
    ADDAN D. CODE, E. N. FITCH- for appellant.
    WORTHINGTON, COCHRAN & BROWNING for appellee.
   Response to Petition for Rehearing by

Judge Settle

Sustaining in Part and Overruling in Part.

In considering the questions raised by the appellee’s petition for a rehearing herein, we have reached the conclusion that so much of the opinion as is embraced in the following paragraph, should be withdrawn:

“In addition to what we have said, appellant was entitled to have his case submitted to the jury upon the idea that he was entitled to recover at common law if his boss was guilty of gross negligence in having the rail shoved without first receiving notice from appellant that he was ready for it to be shoved. This court has often decided, under such state of facts, that the injured party was entitled to recover. The act referred to did not repeal the common law as applicable to Lewis County; it, at most, only superseded that law; therefore, when appellant brought his action under the Congressional Act and the lower court determined that his evidence did not show him to be entitled to recover under that act, he was then entitled to have his case submitted under the common law.”

In our opinion what is therein s-aid was unnecessary to the decision of the case. To the extent indicated, the petition for rehearing is sustained; in other respects same, and the supplemental petition for rehearing, are overruled.  