Opinion of the Court. state commerce in which the carrier is engaged?" and that the defendant was entitled to have the jury say whether at that time it was engaged in interstate commerce. See Seaboard Air Line Railway v. Koennecke, Adm'r, 239 U. S. 352, 36 Sup. Ct. 126, 60 L. Ed. 324. In the instant case there was no evidence that the engine around which the defendant was working at the time of the accident had been or was about to be used in interstate commerce. The evidence was that it was the engine of the local freight, and while it might have pulled some cars destined for points beyond the state line, there was no evidence that it actually did so. Therefore, there was no question for the jury on that point in this case, and it cannot for the same reason be contended that the claim sued for arose under, or was controlled by, the federal Employers' Liability Act. We conclude from the foregoing that the defenses of contributory negligence and assumption of risk and hazard were not questions of law for the court, but were questions of fact for the execlusive determination of the jury (article 23, sec. 6, Oklahoma Const.), provided there was evidence of primary negligence on the part of the plaintiff in error. The rule in this jurisdiction in cases involving negligence is, when a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the question must be submitted to the jury. It is only where the facts are such that reasonable men must draw the same conclusion from them that the question of negligence is considered one of law for the court. M., K. & T. R. Co. v. Shepherd, 20 Okla. 626, 95 Pac. 243; St. L. & S. F. R. Co. v. Loftis, 25 Okla. 496, 106 Pac. 824; Harris v. M., K. & T. R. Co., 24 Chicago, R. I. & P. Ry. Co. v. Felder. Okla. 341, 103 Pac. 758, 24 L. R. A. (N. S.) 858; Sans Bois Coal Co. v. Janeway, 22 Okla. 425, 99 Pac. 153; Mean v. Callison, 28 Okla. 737, 116 Pac. 195. There is little dispute as to the evidence in this case as to things that are charged as negligence on the part of the railway company. There is no dispute about the construction of the platform along the tracks over which the employees of the company were required to pass in the performance of their duties, and that the same was constructed without a guard rail, and it is not denied that the two lights on either end of the roundhouse that were placed in order to throw light upon the turntable were not there at the time of the accident. Now the fact of the construction of this walk without a handrail, and the absence of the lights at the time of the accident, although the defendant in error had a lantern on his arm, are facts about which reasonable men might differ, as to whether or not they constituted negligence. We are therefore constrained to hold that there was sufficient evidence of primary negligence to take the question to the jury. It was therefore not error for the court to deny the peremptory instruction for the plaintiff in error. Exceptions to two instructions that the court gave to the jury are urged under the second assignment. The first is instruction No. 6, in which the court told the jury that if the injuries of the plaintiff were occasioned or contributed to by any acts of negligence or fault on his part, then he was guilty of contributory negligence, and they should find for the defendant. This instruction is in the usual form, and is a fair statement of the rule of contributory negligence. Objection is made to instruction No. 3. The objection made to this instruction is that it submits to the jury Opinion of the Court. in giving them the measure of damages, if they should find for the plaintiff, the "impairment of his future earning capacity resulting from his injuries, if any"; it being contended that there was no evidence of permanent injury, and that therefore this element was improperly submitted to the jury. The record does not show that coun sel for the railway company requested an instruction on this point in a form satisfactory to them. It does show that when the exception was made to the instruction at the time it was given, the court asked the counsel what objections they had to it, and counsel made no reply. It is sufficient to say that there was some evidence, although slight, of permanent injury sustained by defendant in error, and this element of damages, as set out in the instruction, was not outside of the issues made by the pleadings and evidence. The exception to the instructions should therefore be overruled. It is also objected that the court erred in admitting evidence over the objection of the plaintiff in error as to the condition of the platform along the rails across the turntable at a time long prior to the accident; that is, that the defendant in error was permitted on cross-examination to show by a witness that the platform, at a time for more than a year prior to the accident, had been wider than it was at the time of the accident. It is not clear that this testimony was incompetent, inasmuch as it was brought out on cross-examination of a witness produced by the railway to show his familiarity with the platform on the turntable at the time of the accident, and he testified that the platform had been the same for a year or more prior to that time. This testimony may have been competent to test the credibility, as well as the knowledge, of the witness, although it does not seem to be particularly relevant American Fidelity, etc. to the issues being tried. In any event its admission does not appear to have been prejudicial. This case seems to have been properly submitted to the jury upon proper instructions as to the law arising upon the issues made by the pleadings and the evidence, and there is evidence to sustain the verdict of the jury. We therefore recommend that the judgment appealed from be affirmed. By the Court: It is so ordered. AMERICAN FIDELITY CO. OF MONTPELIER, VT., v. ECHOLS. 1. 2. 3. No. 4814. Opinion Filed March 7, 1916. INSURANCE-Accident Insurance Policy-Construction-Double APPEAL AND ERROR-Harmless Error-Exclusion of Evidence. A cause will not be reversed for the exclusion of evidence, unless it appears that such exclusion might have been prejudicial to the plaintiff in error. APPEAL AND ERROR-Verdict-Evidence. The jury are the triers of the facts, and where their verdict is reasonably supported by the evidence this court will not weigh the testimony to determine whether or not it would have reached the same conclusion. (Syllabus by Burford, C.) Opinion of the Court. Error from District Court, Greer County; Action by Samuel E. Echols against the American Fidelity Company of Montpelier, Vermont. Judgment for plaintiff, and defendant brings error. Affirmed. Jas. R. Ross and L. D. Threlkeld, for plaintiff in error. A. R. Garrett and S. B. Garrett, for defendant in error. Opinion by BURFORD, C. This was an action by Samuel E. Echols against the American Fidelity Company, of Montpelier, Vt., to recover indemnity for the loss of a hand, under the terms of an accident policy issued by the plaintiff in error in his favor. A trial was had to the jury, and a verdict returned in favor of the defendant in error (plaintiff in the court below), which verdict was approved by the court, and judgment rendered thereon. It is alleged as error: First. That the plaintiff was allowed to recover a double indemnity, which was not justified under the terms of the policy. Second. That competent questions on behalf of the plaintiff in error were excluded by the court. Third. That the demurrer of the plaintiff in error to the evidence should have been sustained. 1. The evidence on the part of the plaintiff in the court below tended to show that he was injured by the accidental discharge of a shotgun while he was a passenger upon a regular passenger train operated by the Wichita Falls & Northwestern Railway Company. The policy provided in part as follows: mont, "American Fidelity Company of Montpelier, Verhereby agrees to indemnify the insured |