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Opinion Per Curiam.

"Q. And that was your duty, of course, in doing that? A. Yes.

"Q. As you went north on the track you could see the car on the left, of course ? A. Yes.

"Q. That was one purpose for which you were standing on the front there, to look out for obstructions ? A. Yes.

"Q. And as you went north that car was in the clear; at least you concluded it was in the clear, didn't you? A. Yes.”

Again, on page 121 of the record:

"Q. You were satisfied that there was a safe clearance? A. I was satisfied that there was a safe clearance."

It clearly appears from the testimony of the plaintiff himself that if this box car were not in such position upon the sidetrack as to permit the engine to pass it in safety, it was his duty to observe that fact and signal the engineer to stop before coming in contact with it. Having placed the push-pole across the pilot of the engine, and being the only employe of the company upon the front part of the engine that had knowledge of the position of the push-pole, it was his duty to himself and his fellow employes to see that the push-pole remained in such position that it would not come in contact with cars on the adjacent track and cause injury to himself or his fellow workmen.

It may have been the custom of the switchmen employed in the operation of this engine to place this push-pole athwart the pilot for their own convenience, but the company had provided a safe

Opinion Per Curiam.

place for it to be carried upon the engine, and it was the switchman's duty to place it on the hooks provided for that purpose.

Regardless, however, of whether the plaintiff was guilty of any negligence directly contributing to or causing the accident, there is absolutely no evidence tending to prove negligence on the part of the railway company.

Where there is no evidence upon a material issue joined by the pleadings it is the duty of the court to instruct a verdict. Ellis & Morton v. Ohio Life Insurance & Trust Co., 4 Ohio St., 628; Village of Leipsic v. Gerdeman, 68 Ohio St., 1; City of Dayton v. Glaser, 76 Ohio St., 471, and Gibbs v. Village of Girard, 88 Ohio St., 34.

The same principle is involved in the following cases: Cornell v. Morrison, 87 Ohio St., 215, and Cincinnati Gas & Electric Co. v. Archdeacon, Admr., 80 Ohio St., 27.

The plaintiff in his second cause of action averred that the defendant was engaged and that he was employed in interstate commerce. The first cause of action contains no averments with reference to the character of the plaintiff's employment or the nature of the defendant's business. The defendant admitted the allegations in the second cause of action, that the defendant was engaged and that the plaintiff was employed in interstate commerce. There was therefore no issue joined by the pleadings as to the nature of his employment or the character of the defendant's business. The admission by the defendant of the averments in plaintiff's petition dispensed with proof of these

Opinion Per Curiam.

averments. If any proof were necessary, the answers to the interrogatories propounded by the plaintiff would, at least in the absence of conAlicting testimony, be sufficient to disclose the character of the employment and the nature of the defendant's business.

It is of no importance, however, in this case, whether the plaintiff was employed in intrastate or interstate commerce. There was no evidence offered by the plaintiff tending to support the averments of negligence in his petition, and for that reason the judgment of the court of appeals must be affirmed.

Judgment affirmed.

NICHOLS, C. J., NEWMAN, JONES, MATTHIAS, JOHNSON and DONAHUE, JJ., concur.

Statement of the Case.

THE STATE, EX REL. THE EMERY-THOMPSON

MACHINERY & SUPPLY CO. ET AL., v. JONES

ET AL., JUDGES.

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Writ of prohibition - Does not lie to prohibit court of appeals

From determining its own jurisdiction, when.

A writ of prohibition will not issue to the court of appeals pro

hibiting that court from determining its own jurisdiction in cases wherein jurisdiction of the subject matter in an original action, or on appeal or in error proceeding, has been conferred upon that court by the constitution of this state.

(No. 15661 — Decided July 3, 1917.)

IN PROHIBITION.

On the 15th day of June, 1917, the relators filed a petition in this court, praying for a writ of prohibition directed to Oliver B. Jones, Frank M. Gorman, and Francis M. Hamilton, judges of the court of appeals in the first appellate district of the state of Ohio, prohibiting them from proceeding to hear or from entertaining jurisdiction in error in case No. 1094, or jurisdiction on appeal in case No. 1106, on the docket of said court of appeals.

The petition states the official character of the defendants, and avers that on the 12th day of June, 1916, Vincent H. Beckman, trustee, filed a petition in the court of common pleas of Hamilton county, Ohio, against The F. W. Niebling Company, to foreclose a mortgage given to secure a large amount of bonds; that a receiver was appointed, with authority to conduct the business of The F. W. Niebling Company pending the foreclosure pro

Statement of the Case.

ceedings; that judgment was entered in said cause in the sum of $93,957.70; that an order of sale issued, and the sale made in pursuance of such order was confirmed on the 12th day of January, 1917; that on the 17th day of February, 1917, The Emery-Thompson Machinery & Supply Company filed its motion in said cause to set aside the confirmation of the sale and decree of distribution, which motion was sustained at the subsequent term of the common pleas court, the former receiver discharged, and another receiver appointed; that thereupon the former receiver, individually, and as a receiver for The F. W. Niebling Company, excepted; that Vincent H. Beckman, as trustee for the bondholders, and as trustee for certain of said bondholders for whom he purchased the property of said company, gave notice of his intention to appeal the cause to the court of appeals of Hamilton county; that the said Vincent H. Beckman, as trustee of The F. W. Niebling Company and as trustee for certain bondholders of that company, filed a petition in error in the court of appeals in and for the first appellate district of the state of Ohio against The Emery-Thompson Machinery & Supply Co., and others, being cause No. 1094 on the docket of said court, to review the order of the common pleas court setting aside the decree of confirmation and distribution; that on the 14th day of April, 1917, the court of appeals on application of the plaintiff in error entered an order staying the judgment of the court of common pleas setting aside the sale and decree of confirmation and distribution and appointing Edward H. Dornette re

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