
    No. 12248.
    The Mahoning Valley Railway Co. v. Harnett, a Minor, by etc.
    Decided December 20, 1910.
    Error to Circuit Court of Mahoning county.
    
      Messrs. Arrel, Wilson & Harrington, for plaintiff in error.
    
      Messrs. Anderson, Anderson & Barnum and Mr. D. F. Anderson, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed. Grounds stated in journal entry.

This court is of opinion that, whether the answer in this case should be considered a plea charging contributory negligence on the part of -the plaintiff below, or not, the instruction given by the court of common pleas to the jury with respect to the subject of negligence and contributory negligence was and is not prejudicial to the rights of the plaintiff below, and that the circuit court erred in reversing the judgment of the court of common pleas upon the ground in its judgment stated. It is therefore considered and adjudged by this court that the judgment of said circuit court be and the same is hereby reversed for error in reversing" and in not affirming the judgment of the court of common pleas. It is further considered that the said judgment of the court of common pleas be and the same is hereby in all things affirmed.

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