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Opinion Per Curiam.

against the weight of the evidence. We are not here concerned with the weight of the evidence. Considerable testimony was offered with reference to the state of the business and the amount of receipts from it before and after the sale of the theatre to Gray.

The defendants objected to the admission of evidence touching the receipts for a considerable period after the purchase and after the enterprise had passed under the control of Gray. In overruling that objection it appears from the record that the trial court made some suggestion that it would, at the proper time, instruct the jury as to the proper application of that testimony.

The matter in dispute was the value of the theatre at the time of the purchase. It is perfectly clear that this value could not be ascertained by proving the receipts of the theatre during the period subsequent to the time of the sale. All of the conditions may have changed, the circumstances may have been different, the management may have been different, the state of competition in the neighborhood may have been different. Now, if testimony should be produced showing that all of the circumstances surrounding the enterprise after the sale were substantially the same as before, testimony concerning the receipts afterwards would be competent as throwing light upon the issue as to fraudulent representations made by the defendants concerning the receipts at the time of the sale. But it was clearly the duty of the court, his attention having been challenged to the matter, to instruct the jury that any testimony touching

Opinion Per Curiam.

the value of the property, after Gray had come into the control and management of it, could not be considered by them in estimating the actual value at the time of the sale, but should be limited to the light it might throw on the issue of false representations made by the defendants to induce plaintiff to make the purchase. Even if it be conceded that sufficient grounds were laid by the plaintiff, as above indicated, to make the testimony competent, it should have been limited by the court in its instructions to the jury as above stated. This was not done and in the omission to do so the court materially erred to the prejudice of the defendants.

Testimony was admitted which showed that Gordon, after the commencement of Gray's suit for fraud, had begun suits on a certain note and mortgage made by Gray in the transaction. On the trial the defendant Gordon requested the court to charge the jury in writing before the argument as follows: "I say to you that the fact, if


find it to be a fact, that the defendant, Arthur M. Gordon, has taken judgment against the plaintiff on cognovit notes, or has a suit pending against the plaintiff, in foreclosure, has nothing to do with the merits of this case and is not to be considered by you in any manner as reflecting upon the claims made by plaintiff against said defendant."

In view of the evidence introduced we think it clear that the defendant was entitled to have this charge given before the argument, as requested. In the general charge the matter requested was substantially given to the jury with this modifica

Opinion Per Curiam.

tion in the language, “has nothing to do with the merits of the case so far as the question of fraud is concerned.” The pendency of the suit in question was not proper to be considered by the jury touching the merits of this case, and the general charge did not cure the error of the court in depriving the defendant of his substantial legal right.

As stated above, the court of appeals included in its entry, as ground for reversing the judgment of the court of common pleas, "error in general charge.”

Counsel for both parties agree that the essential matter to which this finding referred was the part of the charge concerning the measure of damages. It is as follows: "You will award him [plaintiff] as damages so far as shown by the evidence the difference, if any, between the actual value of the property and business of the Majestic theatre at the time of the sale and the value of the property if it had been at the time of the sale as it was represented to be."

We think this charge was correct. It is in accordance with a long-established rule based upon reason and authority, and has recently been approved by this court in Elder et al. v. Shoff stall et al., 90 Ohio St., 265.

As already indicated, the court of appeals, upon whom rested the duty of weighing the evidence, several times indicated in its opinion its inability to account for the verdict of the jury in the light of the record. The verdict was for $14,750. No reason appears on the record why the plaintiff remitted $750 of the verdict. The price agreed to be

Statement of the Case.

paid for the theatre was $12,500. The sale was made December 28, 1914. The verdict of the jury was rendered five months thereafter, June 1, 1915.

We think it clear that the court of appeals was justified in coming to the conclusion that the errors of law must have resulted in prejudice to the defendants, and its judgment will be affirmed.

Judgment affirmed.




Negligence Failure to support averments of petition Duty to

direct verdict At conclusion of plaintiff's evidence, when Failure to properly place push-pole Duty to look for obstruction on railway tracks - Interstate or intrastate employment Interrogatories to pleading - Answers thereto determinative, when.

(No. 15339 — Decided July 3, 1917.)

ERROR to the Court of Appeals of Lucas county.

The original action out of which this proceeding in error grows was brought by William Burke in the common pleas court of Lucas county, to recover from The Michigan Central Railroad Company damages for personal injuries suffered by him while in the employ of that company.

For a first cause of action the plaintiff averred facts constituting a cause of action under the Employers' Liability Act of Ohio, and for a second

Statement of the Case.

cause of action adopted each and all of the allegations in his first cause of action and further averred that the defendant was engaged and the plaintiff was employed in interstate commerce.

The petition averred that the defendant was negligent in placing a freight car too close to the passing track, so that one end of a push-pole lying athwart the pilot of the engine on which the plaintiff was riding came in contact with a stirrup on a box car, causing the other end to fly up and strike the plaintiff on the back of the head, producing the injuries complained of; that the defendant negligently allowed a young and inexperienced fireman to run its locomotive; that the locomotive was negligently operated; and that the engineer in charge and the fireman running said locomotive failed to use ordinary care to observe the projecting corner of the box car, and negligently continued to move the locomotive past the car, after plaintiff had taken his post on the pilot, thereby placing him in peril which he could not escape.

The defendant for answer to the petition admitted its corporate capacity, and admitted that at the time named in plaintiff's petition it was engaged and the plaintiff was employed in interstate commerce. It admitted that the plaintiff, while riding upon the front of the switch engine working in its yard, was struck and injured, but denied the character and extent of the injuries as pleaded in the petition, and particularly denied each and every allegation of negligence therein charged against it; and, further answering, averred that

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