
    No. 504
    No. 18846
    The Scioto Valley Ry. & Power Co. v. Effie Rutter, Admx.
    Error to the Gouit of Appeals' of Fairfield county.
    225. CHARGE TO JURY—If charge oil contributory negligence was correctly given’, additional instruction that if plaintiff’s^ decedent ■: shared or participated in any way with defendant in producing the injury, plaintiff cannot recover;- is erroneous and- prejudicial.
   MARSHALL, C. J.

1. In a suit for .damages, where the petition charges that injuries were caused by defendant’s. negligence and defendant’s answer-charges that, the injuries were due solely to plaintiff’s negligence, where the court 'correctly instructs on the subject of contributory negligence, and adds to such instruction: ’ l:

“That is, if you should find the defend dant guilty, of some of the material aets--of negligence charged in the petition and also find the plaintiff’s decedent -casually * "shared, with the’ defendant or- participated’1 with the defendant in producing the in-'1 jury complained of, the plaintiff cannot ■ ’ recovter,”

such instruction is erroneous and prejudicial.

2. The; following instruction was also- Erroneous and prejudicial: ' *

“The court instructs you and if you find’ from the evidence that the automobile ■ which was being operated at the time by . said Elmer Rutter was not struck by the-car bf the ' defendant The Scioto Valley, /Traction- Company at said crossing, but. that said automobile was so carelessly arid1 negligéntly operated that it ran irito and struck the side of said traction car, thefe--cari be no recovery'by .plaintiff and your verdict must be for th.e defendant.” *,■

3., (Such an instruction would mislead’the jury on.both'the issue of defendant’s negligence and-plaintiff's negligence-and does not therefore conflict. with the- rule declared in . Sites v. Haverstick, 23 Ohio St., 626.

Judgteerit’affirmed.

/Matthias, Allen arid Robinson,'JJ., concur/’  