
    No. 13773.
    
    Slack et al. v. The Ohio Electric Railway Co.
    Decided May 26, 1914.
    Error io Circuit Court of Muskingum county.
    
      Mr. C. T. Marshall, ior plaintiffs in error.
    
      Mr. F. A. Durban and Mr. E. R. Meyer, for defendant in error.
   Judgment of circuit court reversing common pleas court áffirmedj and judgment of circuit court rendering final judgment reversed. Cause remanded.

' It is! ordered and adjudged by this court, that the judgment of the said circuit court reversing the judgment of the court of common pleas be and the same is hereby affirmed, and that portion of the 'judgment óf the circuit court in this cause dismissing'the plaintiffs’ petition and rendering final judgment' against the plaintiffs in error is hereby revérsed; set aside-and held for naught, and said cause is- remanded 'to the common pleas court of Muskiilgum county for new'trial and further proceedings' according to law.

- • It-is this day (June 9, 1914) ordered and adjudged that the entry of the order and judgment of this court, made and entered May 26th in the above entitled cause, is hereby opened up, set aside and held for naught, and the following is ordered to be entered upon the record of this court, as the entry of’-the judgment of the court in this case, to-wit:

; • This cause came- on to be heard upon the transcript of the record of the circuit court of Muskingurii county, and was argued by counsel, and on consideration whereof and it appearing from the récord that error intervened in the trial of this causé, to the prejudice of the defendant in error in the admission of the evidence offered by the plaintiffs with reference to other transactions of a similar nature, and in the admission of further evidence offered by the plaintiffs as to custom generally for the reason that both parties to this suit were at the time of the accident in the lawful use of the street, and their respective rights must be determined by their respective acts and conduct at the time of the transaction complained of. It is therefore ordered and adjudged by this court that the judgment of the said circuit court reversing the judgment of the court of common pleas be and the same is hereby affirmed, and that portion of the judgment of the circuit court in this cause dismissing the plaintiffs-petition and rendering final judgment against the. plaintiffs in error is hereby reversed, set aside and held for naught, and said cause is remanded to the common pleas court of Muskingum county for new trial and further proceedings according to law.

Nichols, C. J., Johnson, Donatiue, Wanamaker, Newman and Wilkin, JJ., concur;  