It is ordered and adjudged by this court, that the judgment of the said court of appeals affirming the judgment of the common pleas court and the judgment of the court of common pleas of Franklin county, be and the same are both reversed, for error of the common pleas court in instructing the jury that as a matter of law Michael Barry and J. S. Power were fellow servants, and that the plaintiff could not recover on the ground of the negligence of Power, that question being a mixed question of fact and law, to be determined by the jury under proper instructions by the court.
Nichols, C. J., Johnson, Donahue, Wanamakee and Matthias, JJ., concur. Newman, J., dissents. Jones, J., not participating.