
    No. 728
    CLEVELAND (City) v. GUITNER
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7631.
    Decided June 6, 1927.
    First Publication of this Opinion.
    829. NEGLIGENCE — 301. Contributory negligence — Where question as to negligence of defendants is submitted to jury under proper instructions and defendant’s negligence is found to be proximate cause of injuries, judgment in favor of plaintiff will be affirmed.
    Error to Common Pleas.
    Judgment affirmed.
    Borden & Gaines and C. F. Shuler, Cleveland, for City.
    Wm. Rosenzweig, Cleveland, for Guitner.
   VICKERY, J.

The Salem & George Construction Co. was in charge of certain sewer tunneling under a-street in the city of Cleveland. The company had completed its work but had left a pile of dirt on the street. Maud Guitner, in endeavoring to take a street car, slipped on this pile of earth which was covered with a light fall of snow and sustained injuries by reason of the fall which resulted. She sought to recover damages against both the city and the Construction Company.

Guitner recovered a judgment for $3,000. against the defendants, and error was- prosecuted to reverse this judgment.

The case was also appealed, but since the. action is not appealable, and the appeal having been dismissed, the error case is properly before this court. !

It is claimed that the City and Construction' Co. were not guilty of negligence, but that: Guitner was guilty of contributory negligence..

The question as to negligence on part of defendants was submitted to the jury by a special! request; and they found that the defendants' were guilty of negligence and that their neg-' ligence was the proximate cause of the injury.1

There was no special finding as to the question of contributory negligence, but it was-fairly submitted to the jury which found that, defendants were negligent.

(Sullivan, PJ., concurs.)  