ON REHEARING.'
Wood, J.First: Appellant contends, for the first time on 'rehearing, that appellees’ cause of action for the benefit of the estate was brought under the employers’ liability act of Congress, approved April 22, 1908, and that under that act no right of action survives for the benefit of the estate. This contention can not be sustained, for the reasons: (1) That rule. 3 of this court prohibits a consideration of the matter, inasmuch as no reference was made to such contention in the abstract of the case when it was first presented for our consideration. There is no reference whatever to the present contention in appellant’s abstract or brief on the first hearing. (2) The cause of action for which this suit was brought arose on the 23d day of May, 1910. The employers’ liability act was amended on April 5, 1910, so as to provide for a survivor of causes of action for pain and suffering growing out of a personal injury in favor of the personal representative, and that the action may be brought in “ the district in which the defendant shall be doing business at the time of the commencement of such action.” This amendment also provides that the jurisdiction of the courts of the United States shall be concurrent with that of the courts of the several States, and that no case arising under the act and brought in any State court of competent jurisdiction shall be removed to a court of the United States. Therefore, the cause of action accrued to the appellee after this amendment and can be maintained in the State court. 36 United States Stat. at Large, 291 (3 ed). The issue was finally presented to the jury on the question of the negligence of the engineer, based on the laws of Oklahoma.
Second: We are still of the opinion that the issue as to whether or not appellant’s negligence produced the injury complained of was one for the jury. The testimony is set out at length in the statement, and is discussed in the original opinion.
The motion for a rehearing is therefore overruled.