ON MOTION FOR REHEARING. [8] Respondent says we did not rule the amount of damages adequate or inadequate. Right. That if not inadequate, appellant, having received the judgment for damages, may not complain; and concludes reversible error may not be predicated on the instructions. Wrong; because: Contributory negligence in the instant *Page 626 case operates to diminish, not bar, recovery. [See Federal Employers' Liability Act.] While under proper instructions a given verdict might or might not be considered inadequate or excessive as a matter of law according to the facts, such a verdict is as much not in accordance with the law of the case if arrived at under instructions effecting the withdrawal of proper elements of damage from consideration as under instructions injecting improper elements for allowance. The issue then is not merely the adequacy or inadequacy of the damages (as in cases wherein contributory negligence operates as a bar to recovery and plaintiff has prevailed or the damages have been arrived at under instructions properly submitting the issue of the "amount" of the damages) but whether proper damages, within that wide range of discretion between inadequate and excessive damages as a matter of law entrusted to the triers of the fact, have been arrived at under correct directions respecting the "amount" of the verdict.
The motion for rehearing is overruled.