The opinion
APPLICATION FOR REHEARING
No. 659. Decided May 27, 1948.
By THE COURT:
This is an application for a rehearing and a motion to certify as being in conflict with the decision expressed by the Court of Appeals of Lucas County, Ohio, in the case of Brown, Admr., v Bauman, 49 Oh Ap 49.
We have carefully examined the appellant’s brief and find nothing therein that warrants a rehearing. Our attention is called to the fact that the Court charged upon contributory negligence and that defendant’s special charges Nos. 2 and 4 were denied because they were not pertinent. They were on the subject of contributory negligence. The only evidence in the record tending to show contributory negligence was the proffered declarations of the defendant’s decedent which we held to be inadmissible. The charge of the Court on this subject was not pertinent to the issue but it could not have been prejudicial to the appellant. Any prejudice resulting would have been on the other side.
We therefore adhere to our former ruling.
The motion to certify will be overruled as we held that the petition met the requirements laid down in Brown, Admr. v Bauman, 49 Oh Ap 49, and there is no conflict.
WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.