
    No. 10224.
    The Baltimore & Ohio Railroad Co. v. Linn, Administrator, et al.
    Decided November 26, 1907.
    Error to Circuit Court of Holmes county.
    
      Messrs. Arrel, Wilson & Harrington, for plaintiff in error.
    
      Messrs. J. & G. E. Hiiston; Mr. W. Stilwell; Messrs, Carey & Mullins and Mr. Geo. W. Sharp, for defendants in error.
   Judgment reversed. Grounds stated in journal entry.

It is ordered and adjudged by this court that the judgment’of the said circuit court, in so far as it affirms the judgment of the court of common pleas against the Baltimore & Ohio Railroad Company, be, and the same hereby is, reversed for the following reasons: 1. Said circuit court erred in not reversing the judgment of the court of common pleas for error in instructing the jury that the defense of contributory negligence must be proven by defendant to the “satisfaction” of the jury by a preponderance of the evidence; 2. For error in instructing the jury, “In the light of the evidence did the presence and assistance of this person at the time in question contribute in any way to the injury of deceased complained of? If it did and the deceased had knowledge of his incompetency or unfitness as an assistant and he made no complaint thereof to the defendant, his employer, it would be negligence on his part, and can not now be charged to his employer, and can not be considered by you as a matter of negligence charged against defendants. If, however, he did not know of the unfitness of said assistant in the work he was doing, if so he was, and his employer had such knowledge and did not make it known to deceased, the employment of said assistant and putting him to work with deceased, would be negligence on the part of the defendant employer; and if the presence of said assistant and his assistance in the work contributed with other acts of negligence complained of to the injury and death of decedent, then defendants would be liable.” 3. For misconduct of the counsel- for plaintiff during the introduction of the evidence. This court further finds that said circuit court did not err in reversing the judgment of the court of common pleas against The Cleveland, Akron & Columbus Railway Company, and the judgment of the said circuit court in that behalf is therefore affirmed, and the cross-petition in error herein of Olive Linn, Administratrix, is dismissed; and this cause is remanded to the Court of Common Pleas of Holmes county for a new trial.

Si-iauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.  