It is ordered and adjudged by this court that the judgment of the said circuit court be and the same hereby is reversed; and this court proceeding to render the judgment which the circuit court should have rendered reverses the judgment of the court of common pleas and grants a new trial on' the grounds (1) that the court of common pleas erred in the charge to the jury as found commencing at the bottom of page 91 of the printed record and consisting of the entire paragraph ending in the middle of page 92 of said record (2) and in refusing to submit the special request made by plaintiff in error found on page 95 of the printed record. It is further considered by this, court that plaintiff in error recover of defendant in error the costs of the plaintiff in error made in this and the circuit court to be taxed, and this cause is remanded to the- court of common pleas for a new trial and further proceedings according to law.