It is ordered and adjudged by this, court, that the judgment of the- said circuit court be and the same hereby is, reversed for error appearing in the charge to the jury on the. trial in the court of common pleas, as follows, viz.: “If vou find from the evidence that the plaintiff’s dray or wagon was upon the track, upon which the car was approaching, and the motorman in charge of the car saw, or by the exercise of reasonable care on his part could have stopped his car, and in the exercise of reasonable and ordinarv care he could have done so before the collision with the plaintiff’s *442wagon occurred, you will find that the plaintiff is entitled to recover,” it appearing that there was no such issue in the pleadings and that the case was not tried upon such a theory. And this court proceeding to render the judgment which the said circuit court should have rendered, it is hereby ordered and adjudged that the. judgment of the court of common pleas be and the same is hereby reversed and said cause is remanded to said court of common pleas for further proceedings according to law.