
    No. 10254.
    The Lima Electric Railway & Light Co. v. Hicks.
    Decided November 6, 1907.
    Error to Circuit Court of Allen county.
    
      Mr. John W. Warrington; Mr. W. B. Richie and Messrs. Cable & Parmenter, for plaintiff in error.
    
      Messrs. Ridenour & Halfhill and Mr. W. H. Leete, for defendant in error.
   Judgment reversed upon grounds stated in journal entry.

It is ordered and adjudged by this court that the judgment of the said circuit court be, and the same hereby is, reversed for error in affirming and not reversing the judgment of the court of common pleas. And proceeding to render the judgment which the circuit court should have rendered, this court is of opinion that the trial court committed error in refusing to give to the jury the instruction requested by defendant below, to be found on page 430 of the printed record in this court, to-wit: “Where there are two or more methods or ways in which a servant may perform his duty, and he voluntarily chooses the one most hazardous, knowing it to be such, he does so at his own risk.”

This court is also of opinion that the remarks of counsel for plaintiff below to the jury in his closing argument, which were objected to and excepted to at the time by opposite counsel, and which are alleged as grounds for new trial, were improper as being outside of the record, not justified by any evidence in the case, and calculated to prejudice the jury against the defendant.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.  