
    No. 1050
    SHANK, Admr. v. HAMILTON FOUND. CO.
    Ohio Appeals, 1st Dist., Butler Co.
    Decided Sept. 13, 1926
    841. NEW TRIALS — Where new trial has been granted on weight of evidence, a second new trial cannot be granted on that ground; and the Court of Appeals is without authority to weigh the evidence and determine whether or not the verdict is against the weight thereof.
   CUSHING, J.

Albert Logsdon was employed by the Hamilton Foundry & Machine Co. in and about a sand conveyor located in the Company’s plant prior to May 2.0, 1920. On that day he received an injury alleged to have been the result of the failure of the Company to protect the sand conveyor, from the effect of which injury he died.

R. J. Shank the administrator brought an action against the Company in the Butler Common Pleas and received a verdict. The verdict was set aside by the trial court on the ground that it was against the weight of the evidence; and the jury in the second trial returned a verdict in favor of the Company.

Error was prosecuted and it was claimed that the verdict was against the weight of the evidence; that the court erred in its charge, and in refusing to admit evidence offered by plaintiff. The Court of Appeals held:

1. Where the trial court has granted one new trial on the weight of the evidence, it is prohibited by 11577 GC. from granting a second new trial on that ground; and the Court of Appeals is without authority to weigh the evidence and determine whether or not the verdict is against the weight thereof. 101 OS. 316.

Attorneys — Shank & Shank for Administrator'; W. C. Shepherd for Company; all of Hamilton.

2. The court- in its charge to the jury quoted paragraph 2 of 1027 GC. and thus gave to the jury the proper rule by which it should be guided in determining whether or not the Company was guilty of negligence. This charge was not erroneous.
3. The court did not err in refusing to permit plaintiff to show what was done with the sand conveyor after the accident. Under the statute, the question was whether it was protected at the time of the accident and whether that protection was as the statute requires.
4. There being no prejudicial error in the record, the judgment will be affirmed.

Judgment affirmed.

(Buchwalter, PJ., and Hamilton, J., concur.)  