M. Kahn & Bro. v. Bledsoe, 22 Okla. 666; 226 U. S. 618. Morley et al. v. Fewel, 32 Okla. 452; 239 U. S. 657. New v. Territory, 12 Okla. 172; 195 U. S. 252. Paine v. Foster et al., 9 Okla. 213; 191 U. S. 562. Palmer v. Wichita Falls & N. W. R. Co., 60 Okla. 205, 247 U. S. 525. Phillips v. Mitchell, 68 Oklahoma; 248 U. S. 531. Shultz v. Ritterbusch, 38 Okla. 478; 232 U. S. 719. State ex rel. Haskell, Governor, v. Huston, Judge, et al., 21 Okla. 782; 215 U. S. 592. St. Louis & S. F. R. Co. v. Hodge, 53 Okla. 427; 244 U. S. 644. St. Louis & S. F. R. Co. v. Shepard, 40 Okla. 589; 240 U. S. 240. Sweet et al. v. Boyd et al., 6 Okla. 699; 20 Sup. Ct. Rep. 1019. Territory ex rel. Okla. Gas & Elec. Co. v. De Wolfe et al., 13 Okla. 454; 196 U. S. 643. Turner v. Old Homestead Co. et al., 68 Oklahoma; 248 U. S. 590. United States Fidelity & Guaranty Company v. State of Oklahoma et al., 67 Oklahoma; 250 U. S. 111. Wells-Fargo Express Co. et al. v. State, 45 Okla. 115; 242 U. S. 662. Western Casualty & Guaranty Insurance Co. v. Capitol State Bank of Oklahoma City, 68 Oklahoma: 250 U. S. 16. Wichita Falls & N. W. Ry. Co. v. Puckett, 53 Okla. 463; 242 U. S. 619. INDIAN TERRITORY CASES OVERRULED. Baldwin v. Ferris, 2 Ind. Ter. 438. See Luce v. Garret, 4 Ind. T. 55; M., K. & T. Ry. Co. v. Phelps, 4 Ind. T. 706. Butler v. Penn, 3 Ind. T. 505. See Luce v. Garret, 4 Ind. T. 55; M., K. & T. Ry. Co. v. Phelps, 4 Ind. Ter. 706. Morrow v. Burney, 2 Ind. Ter. 440. See Luce v. Garret, 4 Ind. T. 55; M., K. & T. Ry. Co. v. Phelps, 4 Ind. T. 706. Shapleigh Hardware Co. v. Brittain, 2 Ind. T. 242. See Luce v. Garret, 4 Ind. T. 55; M., K. & T. Ry. Co. v. Phelps, 4 Ind. T. 706. INDIAN TERRITORY CASES APPEALED TO THE CIRCUIT COURT OF APPEALS AND TO THE SUPREME COURT OF THE UNITED STATES. AFFIRMED. American Express Co. v. Lankford, 1 Ind. T. 233, 2 Ind. T. 18; 96 Fed. 380. Badgett v. Johnson-Fife Hat Co., 1 Ind. T. 2, 133; 85 Fed. 408. Capital Townsite Co. v. Fox et al., 6 Ind. T. 223; 152 Fed. 697. Case v. Hall, 2 Ind. T. 8; 94 Fed. 300. Chandler v. Rutherford, 2 Ind. T. 379; 101 Fed. 774. Choctaw, O. & G. R. Co. v. Bond, 6 Ind. T. 515; 100 Fed. 403-405. Davenport v. Buffington, 1 Ind. T. 424; 97 Fed. 234. Dorrance v. McAlester, 1 Ind. T. 473; 91 Fed. 614. Fox v. Tyler, 3 Ind. T. 1; 109 Fed. 258. Gentry v. Singleton, 4 Ind. T. 346; 128 Fed. 679. Guarantee Gold Bond Loan & Savings Co. v. Edwards et al., 7 Ind. T. 297; 164 Fed. 809. Hardemann et al. v. Turner et al., 3 Ind. T. 338; 112 Fed. 41. Harless v. United States, 1 Ind. T. 447; 92 Fed. 353. Harper v. United States, 7 Ind. T. 437; 170 Fed. 386. Hayes v. Barringer, 7 Ind. T. 697; 168 Fed. 221. Holford v. James et al., 4 Ind. T. 632; 136 Fed. 553. Kimberlin v. Com. to Five Civilized Tirbes, 3 Ind. T. 16; 104 Fed. 653. Liverpool & London & Globe Ins. Co. v. Kearney, 2 Ind. T. 67; 94 Fed. 314. Rainwater-Bradford Hat Co. et al. V. McBride et al., 3 Ind. Ter. 621; 117 Fed. 597. Robinson v. Belt, 2 Ind. Ter. 360; 100 Fed. 719. Sass & Crawford v. Thompson et al., 6 Ind. T. 60; 152 Fed. 627. Smith v. Armour Packing Co., 6 Ind. T. 479; 158 Fed. 86. Southwestern Coal & Imp. Co. v. McBride, 3 Ind. T. 223; 104 Fed. 1007. Swoffard Bros. Dry Goods Co. v. Smith-McCord Dry Goods Co., 1 Ind. T. 314; 85 Fed. 417. Wilson v. Owens, 1 Ind. T. 163; 86 Fed. 571. REVERSED. Atoka Coal & Mining Co. v. Miller, 7 Ind. T. 104; 170 Fed. 584. Hargadine-McKittrick Dry Goods Co. v. Bradley, 1 Ind. T. 650; 96 Fed. 914-916. In re Estate of Geo. W. Taylor, 5 Ind. T. 219; 145 Fed. 169. McFadden v. Blocker, 2 Ind. T. 260; 105 Fed. 293-312. Missouri, K. & T. Ry. Co. v. Wilhoit, 6 Ind. T. 534; 160 Fed, 440-442. Moffett-West Drug Co. v. Byrd, 1 Ind. T. 612; 92 Fed. 290. Ranney-Alton Merc. Co. v. Mineral Belt Const. Co., 2 Ind. T. 134; 104 Fed. 595. Raymond v. Raymond, 1 Ind. T. 334; 83 Fed. 721. Sanger v. Hibbard, 2 Ind. T. 547; 104 Fed. 455-457. Shapard Grocery Co. et al v. Hynes, 3 Ind. T. 74; 104 Fed. 449. Stanclift v. United States, 5 Ind. T. 486; 139 Fed. 806. Swift & Co. v. Guy, 3 Ind. T. 756; 97 Fed. 443. Westchester Fire Ins. Co. v. Blackford, 2 Ind. T. 370; 101 Fed. 90. DISMISSED. Binyon v. United States, 4 Ind. T. 642; 195 U. S. 623. Forsythe v. United States ex rel. Isperhecher, 3 Ind. T. 499; 115 Fed. 1019. G. W. Walker Trading Co. v. Grady Trading Co., 1 Ind. T. 191, 81 Fed. 1008. Kelly et al. v. Johnson, 1 Ind. T. 184; 82 Fed. 1002. Laurel Oil & Gas Co. v. Morrison et al. (not found in Ind. T. Reports); 212 U S. 291. McMillan v. McKee, 2 Ind. T. 529; 102 Fed. 1004. Noble v. Worthy, 1 Ind. T. 458, 523; 91 Fed. 1003. Stephenson v. Osage Coal & Mining Co., 3 Ind. T. 567; 115 Fed. 1021. Tryon et al. v. Crowell, 3 Ind. T. 345: 109 Fed. 1063. THE OKLAHOMA REPORTS VOLUME 61 MISSOURI, K. & T. R. CO. v. JAMES. No. 6682-Opinion Filed July 11, 1916. Rehearing Denied Sept. 26, 1916. (159 Pac. 1109.) 1. New Trial-Right to-Discretion of Trial Court. Trial courts are vested with a very large and extended discretion in the granting of new trials, and new trials ought to be granted whenever in the opinion of the trial court, the party asking for a new trial has not probably had a reasonably fair trial, and has not, in all probability, obtained or received substantial justice, although it might be difficult, in many instances, for the trial court or the parties to state the grounds for such new trial upon paper so plainly that the Supreme Court could understand them as well as the trial court and the parties themselves understood them. 2. Appeal and Error Granting of New Trial. As the granting of a new trial only places the parties in a position to have the issues between them again submitted to a jury or court, the showing for reversal should be much stronger where the error assigned is the granting of a new trial than where it is the refusal. 3. Same. The granting of a new trial being so much within the discretion of the trial court, this court will not reverse an order of such court granting a new trial, unless error is clearly established in respect to some pure, simple, and unmixed question of law. The Supreme Court will not reverse the ruling of the trial court granting a new trial unless it can be seen beyond all reasonable doubt that the trial court has manifestly and materially erred with respect to some pure, simple and unmixed question of law, and that except for such error the ruling of the trial court would not have been so made. The Supreme Court will very seldom and very reluctantly reverse the decision or order of the trial court which grants a new trial. 4. Death-New Trial-Actions Death-Instructions. Wrongful The giving of this instruction by the court on its own motion to the jury upon the trial of this cause was, we think, erroneous, highly prejudicial to the substantial rights of the plaintiff, preventing him from having a fair and impartial trial under the Constitution and laws of our state, and would have constituted reversible error, and therefore the trial court's action, in the exercise of that sound discretion vested in him under the law as to the matter of granting or refusing a motion for a new trial, in correcting the reversible error thus committed by him, and in granting the plaintiff's motion for a new trial, and in setting aside the judgment theretofore rendered, was eminently right, just, and proper, is free from reversible error, and will not be disturbed by this court on appeal. (Syllabus by Davis, C.) Error from District Court, Pontotoc County; Tom D. McKeown, Judge. Action by Gipson James against the Missouri, Kansas & Texas Railway Company. Judgment for defendant, but the trial court granted plaintiff a new trial and set the judgment for defendant aside. Defendant brings error. Affirmed. Clifford L. Jackson, W. R. Allen, and M. D. Green, for plaintiff in error. Geo. W. Burris, C. C. Williams, and J. W. Dean, for defendant in error. Opinion by DAVIS, C. We will mention the parties to this action throughout this opinion as they were designated in the trial court. The plaintiff, Gipson James, sued the defendant railway company in the district court of Pontotoc county, Okla., to recover the sum of $3,000 for the alleged negligent killing of his son Lavin James, on a public highway crossing in said county on October 12. 1912, at about 11 o'clock p. m. Plaintiff further alleged in his petition that his son was 17 years of age at the time of his death, and was living with plaintiff. A trial to a jury resulted in a verdict against plaintiff and in favor of the defendant on September 24. 1913, and on the same day the trial court rendered judgment on said verdict that the 1 61 OKLAHOMA REPORTS plaintiff take nothing by reason of the matters and things in this suit, and that the defendant have and recover of and from the plaintiff, Gipson James, all of its costs in this behalf laid out and expended. The court gave in his charge to the jury instruction No. 14, on his own initiative or motion, which instruction is as follows: "The court instructs the jury that the testimony of the inheritance of the allotment of the deceased by the plaintiff is admitted in this case for your consideration in determining whether the value of said allotment so inherited was, at the time of his death, in excess of, or equal to, any money that the deceased was contributing to the plaintiff from said allotment, and if you find from said evidence that the value of the inheritance was equal to or exceeded the amount that the plaintiff would have received as a contribution from the deceased from this source alone, until he arrived at his majority, then the plaintiff would not be entitled to recover in damages for any loss sustained, if any." On September 25, 1913, the plaintiff filed the following motion for a new trial, omitting caption and mere formal parts: "Comes now the plaintiff and moves the court to vacate and set aside the verdict and judgment rendered herein on the 24th day of September, 1913, and to grant a new trial, for the following causes, which affect materially the substantial rights of said plaintiff: "First. Irregularity in the proceedings of the court by which the plaintiff was prevented from having a fair trial. "Second. Error of law occurring at the trial, and duly excepted to at the time by the plaintiff. "Third. That the verdict is not sustained by sufficint evidence and is contrary to law. "Fourth. Error of the court in allowing the introduction of testimony on behalf of the defendant over the ebjection of the plaintiff, which was duly excepted to by the plaintiff. "Fifth. Error of the court in giving instructions Nos. (7), (8), (10), (11), (14), and (15), excepted to by plaintiff. "In support whereof, plaintiff respectfully prays the court to grant this motion and set aside and vacate the verdict and judgment herein and grant a new trial in this cause." And thereafter, and on, to wit, the 31st day of January, 1914, came on for hearing the motion of the plaintiff for a new trial, and after argument of counsel the court took the matter under advisement. And on April 6, 1914, the court entered the following journal entry: That "Now, on this 6th day of April, 1914, the same being one of the regular judicial days of the February, 1914, term of said court, the motion of the plaintiff for a new trial in the above entitled action having been heretofore, on the 31st day of January, 1914, argued and submitted to the court and by the court taken under advisement, being under consideration, and the court, being fully advised in the premises, finds: said motion for a new trial should be granted upon the fifth ground thereof, for the error of the court in giving to the jury of its own motion instruction No. 14, which is as follows: "The court instructs the jury that the testimony of the inheritance of the allotment of the deceased by the plaintiff is admitted in this case for your consideration in determining whether the value of said allotment so inherited was at the time of his death in value in excess of, or equal to, any money that the deceased was contributing to the plaintiff from said allotment, and if you find from said evidence that the value of the inheritance was equal to or exceeded the amount that the plaintiff would have received as a contribution from the deceased from this source alone until he arrived at his majority, then the would not be entitled to recover in damages plaintiff for the loss thus sustained, if any'—and that said motion should be overruled on all other grounds, and said judgment of September 24, 1913, be set aside. "It is therefore considered and ordered by the court that the motion of the plaintiff for a new trial be, and the same is hereby sustained, upon the ground and for the reason hereinabove set forth, and that said motion be, and the same is hereby, overruled as to all other grounds, to which action of the court in sustaining said motion the defendant at the time excepted. And thereupon, upon motion of the defendant, and good cause having been shown to the court, the defendant is granted an extension of time of 90 days from this date in which to prepare and serve case-made for appeal to the Supreme Court of Oklahoma, plaintiff to have 10 days thereafter to suggest amendments, said case-made to be then settled upon 5 days' notice in writing, from either party for that purpose, and petition in error to be filed in the Supreme Court within 180 days." The sole question here for our determination, and the only one that we shall consider, is the question as to whether or not the trial court erred in sustaining the motion of the plaintiff for a new trial on the ground set forth in said journal entry, supra, and in setting aside the judgment of the court rendered on the verdict of the jury returned in the cause at the trial, from which the defendant appealed. In Cyc. vol. 13, at page 364, under the head of damages for death by wrongful act, it is said: "The rule seems to be well recognized that it cannot be shown in mitigation of damages |