
    NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    January 29, 1910.]
    Giffen, Smitli and Swing, JJ.
    Batavia Tpk. & Miami Bridge Co. v. John Hodapp.
    Instructing that Plaintiff mat Recover if Preponderance of Evidence Shows Him without Fault, Insufficient.
    An instruction in an action for damages based on a tort, that the plaintiff may recover if it appears from a preponderance of the evidence that he was without fault is erroneous, unless predicated upon proof that the accident was due to the negligence of the defendant.
    Error to common pleas court.
    
      D. W. Murphy and George Hoadly, for plaintiff in error;
    
      Samuel B. Hammel, for defendant in error.
   SMITH, J.

It was error in the trial court to charge the jury that “if you find by a preponderance of the evidence that the plaintiff was without fault he would be entitled to recover.” This is not a prbper statement of the law to the jury, as it eliminates from the case the duty on the part of the plaintiff to prove that the negligence of the defendant caused the injury complained of, and we do not think the effect of this charge was removed by the court.

Upon the question of the verdict being excessive, we-are of the opinion that such is the case, and had the verdict 'been for a sum in the neighborhood of $250, under the evidence it would seem more reasonable

Judgment reversed.

Giffen and Swing, JJ., concur.  