earned in other employment during that period. It appears from the record that Miss Allen earned $10.00 during the time she was laid off."

The Division's attention is also directed to the following portion of the court's oral opinion and findings of fact and conclusion of law in the case of Brotherhood of Maintenance of Way Employes, by Luther E. Rhyne, a member of the said Brotherhood and an officer thereof, being its general chairman of employes of the Quanah, Acme and Pacific Railway v. Quanah, Acme and Pacific Railway Company, (District Court of the United States, Northern District of Texas, Dallas Division No. 772 Civil):

"It would not be right to allow him to recover what he would have made from the defendant Railway and also keep in his pocket what he did make with other employers during the time."

The carrier therefore asserts that in the event the Board considers the matter of compensation to the claimant for time lost, it is incumbent upon the Board to follow the logical and established principle set forth above and require that any and all earnings by the claimant during the period for which compensation is claimed be deducted.

The claim is without merit and should be denied.

FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

The parties to said dispute were given due notice of hearing thereon.

On June 4, 1953, claimant Stellato injured his back due to lifting an oil drum while on duty for the carrier in his capacity as laborer at Harmon, New York. On July 20 and August 7, 1953, he underwent surgery to correct the condition said to have been caused by this injury. Claimant has not since worked for the carrier. He thereafter brought suit against the carrier in a State court, his complaint stating that "upon information and belief, (he) was permanently injured . . . (that he) will never be able to work again because of his injuries and will be permanently and wholly incapacitated from engaging in manual labor and that by reason thereof plaintiff has been and will be deprived of earnings, all to his damage in the sum of Two Hundred Thousand ($200,000.00) Dollars." (Parenthetical language supplied.) The resulting trial was concluded on November 9, 1954, when the jury awarded claimant $33,227.25. Carrier settled this judgment on November 22, 1954, by payment of the sum indicated.

During the course of the trial, two physicians were called to testify in the claimant's behalf. Both of these witnesses testified that another operation was recommended in order to stabilize claimant's spine and to relieve the pain, but that the anatomical or mechanical defect in his spine was permanent. Each physician also testified that in his judgment the claimant would never be able to do laborious railroad work again. The carrier offered no medical testimony.

On February 7, 1955, claimant requested the carrier to restore him to service. This was less than three months after the conclusion of the trial at which claimant's contentions had prevailed and, so far as the record discloses, no pain relieving operation had been performed on him in the meantime. He presented the carrier with a statement from a third physician, the gist of which was that he had made a remarkable recovery following a convalescence in Florida. The carrier refused claimant's request for reinstatement on the ground that his successful contention and offer of medical testimony in court that he was permanently disabled for further railroad service constituted, in effect, a relinquishment of his employment relationship with the carrier.

We have carefully reviewed the numerous awards of this Board that have been cited during the present proceeding. While it is said that there are two lines of conflicting decisions on cases of this general nature, diligent examination of these decisions reveals the great majority of them contained particular factual circumstances to which weight was given. We, therefore, decide to base our conclusion in the present dispute on the facts that are peculiar to this case.

We are of the opinion that the claim cannot be sustained. The claimant did not supply to the jury medical information that was labeled as conjecture, guesswork, or supposition. He sought to prove that never again would he be able to perform any laboring service in the railroad industry. Carrier offered no contrary medical testimony. The claimant succeeded in his proof. Since he was compensated for permanent disablement in this respect, we do not think claimant is entitled to escape the consequences of his successful endeavor by contending, in effect, that the basis upon which he obtained judgment from the carrier was all a mistake. We do not think it can be successfully asserted that the amount of the judgment rendered claimant was simply compensation for the time lost from carrier's service prior to February 7, 1955. Nor are we entitled to conclude that this sum was intended, in part, to cover medical expenses, since these were not borne by the claimant.

AWARD