
    JALENCIS v JOSEPH KALILL & JACKSON COMPANY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 16416.
    Decided Mar 31, 1938
    Messrs. Harrison & Marshman, Cleveland, for Plaintiff-Appellee.
    McKeehan, Merrick, After and Stewart, Cleveland, Counsel for Defendant Appellant.
    (Guernsey, PJ, Crow J. Klinger J, of the Third District sitting by designation in the Eighth District).
   OPINION

By THE COURT

The court did not err in overruling the motion to direct a verdict in favor of the defendant on the ground that the plaintiff was guilty of contributory negligence as a matter of law.

The plaintiff, under the conceded facts in the case, was a child under the age of fourteen years at the time of the injuries complained of by him.

Under the law of Ohio as established in the case of L. E. & W. R. R. Co. v Mackey, 53 Oh St 370 at pages 383 and 384, a child under fourteen years of age cannot be held as a matter of law to have the capacity to foresee and avoid danger, and consequently cannot be held guilty of contributory negligence as a matter of law.

The granting of the motion for a new trial was not a final order from which an appeal can be perfected. Ramsey v Oyler, Ohio Bar Feb. 28, 1938, 133 Oh St 321.

There is no error in any other particular argued in appellant’s briefs.

We find no error and the judgment is affirmed at costs of appellant. Cause remanded for further proceedings according to law. Exceptions.

GUERNSEY, PJ, CROW -J. KLINGER J, concur.  