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JEWETT CAR CO. v. NOTT. (No. 9,490.) (Supreme Court of Ohio. March 20, 1906.) Error to Circuit Court, Licking County. Wright & Wright, for plaintiff in error. James and Flory & Flory, for defendant in error.

PER CURLAM. Judgments of circuit and common pleas courts reversed, and judgment for plaintiff in error; grounds stated in journal entry. It is ordered and adjudged by this court that the judgment of the said circuit court be, and the same hereby is, reversed for error in affirming the judgment of the court of common pleas of Licking county, Ohio, in said cause, for the reason that the special findings of the jury are inconsistent with its general verdict, and said court of common pleas erred in overruling, and in not sustaining, the motion of the defendant, the Jewett Car Company, to render judgment in its favor on said special findings of the jury, notwithstanding the general verdict. Ordered that the judgment of the said circuit court and of the said common pleas in said cause be, and they are hereby, reversed, and this court, proceeding to render the judgment said court of common pleas should have rendered, it is ordered that the motion of the defendant, the Jewett Car Company, for judgment in its favor on the special findings of the jury, notwithstanding the general verdict, for the reason that the special findings are inconsistent with the general verdict, be sustained, and that the said defendant, the Jewett Car Company, go hence without day and recover of said plaintiff, B. R. Nott, administrator of the estate of Henry W. Kindig, deceased, its costs in said court of common

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LAKE SHORE & M. S. R.Y. CO. V. BURTSCHER. (No. 9,804.) (Supreme Court of Ohio. June 29, 1906.) Error to Circuit Court, Lucas County. Potter & Potter, George C. Greene, F. J. Jerome, and N. D. Doughman, for plaintiff in error. Charles A. Thatcher, for defendant in error.

PER CURIAM. Judgment reversed; ground stated in journal entry. It is ordered and adjudged by this court that the judgment of the said circuit court be, and the same hereby is, reversed; and this court, proceeding to render the judgment which the circuit court should have rendered, reverses the judgment of the court of common pleas on the ground that, on the issue submitted to the jury by the trial court as to whether the towerman of the plaintiff in error at the time of the injury was the superior of the engineer, defendant in error, an analysis of all the evidence introduced by both parties to the action, and found in the printed record, shows that the said towerman, at the time of the injury complained of, was the fellow servant of said engineer, defendant in error, and that in doing the alleged act complained of as negligence said towerman was acting in the . capacity of such fellow servant. This finding is independent of Exhibit 4, in dispute, as to its being a part of the bill of exceptions, as there is nothing in said exhibit, if considered, which tends to affect the above finding. It is further ordered and adjudged that this cause be, and the same is, remanded to the court of common pleas for new trial on the issues joined between the parties by their pleadings, and for further proceedings according to law. Cure

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