
    17146.
    Nellie McMurtrie v. Wheeling Traction Co.
    Error to the Court of Appeals of Jefferson county.
    NEGLIGENCE — (1) Not contributory. When any phase of facts warrants an inference of due care— (2) When it becomes a question of fact — (3) Court of Appeals may reverse itself, when.
   ROBINSON, J.

1. Where any phase of the facts as shown by the evidence upon the subject of contributory negligence,’ will warrant the inference that the plaintiff, at the time of the injury, was exercising due care, it cannot be said that plaintiff was guilty of contributory negligence, as a matter of law.

2. In all cases where in determing the existence or non-existence of contributory negligence it becomes necessary to detect the truth from conflicting evidence, it becomes a question of fact and not of law.

3. A court of appeals having once reversed a case upon the weight of the evidence is not prohibited by the provision of Section 11577, General Code, to again pronounce judgment of reversal upon the ground that the plaintiff was guilty of contributory negligence as a matter of law. But where it requires the weighing of evidence to determine whether plaintiff was guilty of contributory negligence it becomes a question of fact, and the provisions of that section apply.

Judgment reversed and judgment of the court of common pleas affirmed.

Wanamaker, Matthias, Day and Allen, JJ., concur.  