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such car and the Mansfield office of said company, and that a like rule or custom obtained with cars leaving Shelby for Mansfield. The foregoing facts as gleaned from the bill of exceptions have been stated with some degree of particularity that they may aid in the consideration of the issues raised by the pleadings therein.

It is fundamental that negligence as a ground of recovery is not to be presumed from the happening of an accident but must be proven. As was announced in the case of Cleveland, T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142]:

"Negligence must be proved either by testimony directly establishing the fact, or by the proof of facts from which such negligence will reasonably follow and be presumed. The jury can not be allowed to guess that there was negligence without some proof thereof, either direct or inferential."

The correctness of this proposition as one of law is not to be questioned. In the abstract it is applicable alike to all cases triable by jury, namely, that the material and ultimate fact upon which a recovery is sought must be proven. The importance of applying this salutary and essential principle of law is emphasized by the verdict in this case. The amount of the verdict, when considered with reference to the issues raised by the pleadings, renders it necessary that the whole record of the case should be thoroughly canvassed with the sole view of ascertaining whether such verdict is authorized by the evidence and the law. To this end we have read the entire bill of exceptions with not a little care with reference to the respective claims of counsel on either side.

It is charged in the petition that the company was negligent in running its Shelby interurban car against and colliding with the repair car on which the defendant in error was at work repairing said wires, which it is alleged was the proximate cause of his injury. The testimony as to whether the manager of the company who is in legal effect the master here, personally directed the defendant in error to repair said wires is somewhat in conflict, but we are inclined to hold that a fair construction

Railway, L. & P. Co. v. Barr.

of the testimony in this respect shows that such order was given. Having been ordered to go to the scene of the work to repair these wires with said repair car, and having gone and engaged upon said car as ordered, which was known to be peculiarly dangerous, with the knowledge on the part of the company that cars were scheduled soon thereafter to pass at the place where he was so engaged, including the said Shelby interurban car, was it not the duty of the plaintiff in error, in the exercise of ordinary care, to make proper provision for the safety of the defendant in error as would afford him protection from the dangers incident to the operation and movement of cars between Shelby and Mansfield and in Mansfield, to avoid collision with said repair car while he was engaged in said work of repairs? We think, it was, and we further think that this question, in terms, was properly submitted to the jury by the trial court in its charge. Lake Shore & M. S. Ry. v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403]; Lake Shore & M. S. Ry. v. Lavalley, 36 Ohio St. 221; New York C. & St. L. Ry. v. Roe, 25 O. C. C. 628 (4 N. S. 284).

It was contended on behalf of the plaintiff in error that the motorman in charge of the Shelby interurban car and the defendant in error were fellow servants, and that therefore, if the injury to the defendant in error was the result of negligence, it was that of a fellow servant and not that of the plaintiff in error. Plaintiff in error testified that he was acquainted with the rules of the company in the operation of its cars between Shelby and Mansfield, and that before leaving Shelby the officers or employees of the car would "call in and get orders" from the Mansfield office, and the same practice was observed in passing Spring Mill. If this is true, knowledge of the time the car in question left Shelby was brought direct to the knowledge of the plaintiff in error, and although the motorman of such car may have been negligent in failing to see said repair car and in colliding with it, if the plaintiff in error then knew that said interurban car was on its way from Shelby to Mansfield, and then knew that the defendant in error was then engaged in the work of repairing said wires and took no steps to

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protect him from the danger of said car colliding with said repair car, and colliding with said repair car the defendant was thereby injured, then it would be a question for the jury to determine whether or not the plaintiff in error was not guilty of negligence, and if so, whether or not such negligence was the direct and proximate cause of the injury to the defendant in error. On this subject the court below charged the jury as follows:

"If you find that the manager of the company knew that the plaintiff in the discharge of his duties intended to make the alleged repairs on said trolley, and you further find that an ordinarily prudent person, under the circumstances and in the situation of the manager of the defendant company, would have reasonably apprehended from the character of the work and the time and place of its performance that the plaintiff would, in the performance of such work, under the circumstances, be placed in peril and danger by reason of the operation of the city and interurban cars upon the track at such point where plaintiff was working, then it would be the duty of the defendant to exercise ordinary care to obviate possible injury to plaintiff arising from the perils, if any, that might reasonably be apprehended in the operation of its cars at said place, while plaintiff was in the performance of his duties.

"If the defendant failed or omitted to exercise such care. then such failure or omission would constitute negligence on its part, and, if such negligence was the direct and proximate cause of injury to the plaintiff, or if the motorman of the car that collided with the work car was guilty of negligence as charged in the petition, and such negligence, if any, combined with the negligence of the defendant resulted in injury to the plaintiff, defendant would be liable, unless plaintiff, immediately prior to and at the time of the accident was guilty of negligence directly contributing to his own injury."

We think that the foregoing contains a fair and correct statement of the law applicable to the facts in this case.

While the defendant in error on entering the service of the company assumed the ordinary and natural risks incident to

Railway, L. & P. Co. v. Barr.

his employment, including those of his fellow servants, he did not assume the negligence of the company. The motorman here was engaged in another branch and department of service and in a different service from that of the defendant in error. He was engaged in managing and operating an electric car under the control of a conductor, while the defendant in error was a general repairman with no one in authority over him. Their duties were entirely separate and distinct, and being engaged in different branches and departments of service, we are of the opinion that they were not fellow servants, so that while the motorman in charge of the Shelby interurban car may have been negligent, still under the facts as they appear here, the commingled negligence of the motorman with that of the company would be the negligence of the company and render it liable. Carter v. McDermott, 5 St. Railway Report 72; Pittsburg, C. & St. L. Ky. v. Henderson, 37 Ohio St. 549; New York C. & St. L. Ry. v. Roe, supra.

It is contended by the plaintiff in error that the conduct of the defendant in error in jumping from the repair car immediately before the collision showed such contributory negligence upon his part as to défeat his right to a recovery herein. This was a question for the jury, and upon this subject we are of the opinion that the court below properly instructed the jury, in the light of the uncontradicted testimony of the defendant in error that he suddenly found himself in a position of imminent danger by the close approach of the Shelby interurban car to the repair car on which he was working, he was not to be held to a strict account as to the course of conduct pursued by him to avoid danger, and possibly save his life. Pennsylvania Ry. v. Snyder, 55 Ohio St. 342 [45 N. E. Rep. 559; 60 Am. St. Rep. 700].

It is also contended by the plaintiff in error that the court below erred in its charge to the jury in not definitely defining the issues between the parties hereto. A reading of said charge shows that the pleadings were not only read to the jury but that the issues of fact as raised therein were later on during said court's charge to the jury called to the attention of the

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jury and special instructions pertaining thereto were given by said court, all of which we are of the opinion was entirely consistent with the rule laid down in the case of Baltimore & Ohio Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. Rep. 1071].

It is further contended by the plaintiff in error that the court below erred in its instructions to the jury respecting the duty of the company in the matter of furnishing the defendant in error a safe place to work. On this subject said court charged the jury as follows:

"The relation between plaintiff and defendant was that of master and servant and by virtue of such relation while the plaintiff was in its employ, the defendant would owe to him the duty of exercising ordinary care to provide him a reasonably safe place for the performance of his services. Thus a master would be bound to take all such precautions for the protection of one in his employ as an ordinarily prudent person would take to protect a servant in his employ.from danger, having due regard for the character of the work and the place of its performance."

This instruction we think is in harmony with the principle enunciated in the case of Cincinnati, H. & D. Ry. v. Frye, 80 Ohio St. 289 88 N. E. Rep. 642; 131 Am. St. Rep. 709], and we therefore hold that the contention of the plaintiff in error in this respect is not sustained.

Errors are also claimed in the action of the court below in the admission and exclusion of certain evidence offered upon the trial including the examination of the ankles of the defendant in error by a physician in the presence of the jury, and the advice given by a certain physician to the defendant in error to have his case treated by a certain Chicago specialist and his charges therefor, and alleged conversations with the defendant in error in respect to the cause of the accident, all of which we have looked into and we are of the opinion that while perhaps technical errors did intervene in the admission of testimony offered in the respects mentioned, we do not regard them as prejudicially affecting the interests of the plaintiff in error, and for this reason we hold that they, or either of them, do not constitute ground for reversible error.