A careful examination of the record in this case discloses that it presents a controversy in all essential respects identical with the case of Payne, Director Gen. of Railroads, v. Vance, 103 Ohio St., 59, 133 N. E., 85. The judgment of the Court of Appeals in the instant case must therefore be affirmed upon the authority of that case.

*552 We feel, however, that, inasmuch as this case must be remanded to the trial court for a new trial, some notice should be taken of defendant’s requests to charge, five in number, presented at the hearing of the case in the trial court. Without taking the time to discuss them in detail, it is sufficient to say that we approve as sound propositions of law Nos. 1, 3 and 4. We disapprove charge No. 2, and feel that if charges 1, 3 and 4 are given by the trial court at the new trial of this cause No. 5 should be omitted, if for no other reason than that it is a repetition of matters contained in the other, approved charges, . .

The judgment of the Court of Appeals is therefore affirmed.

Judgment affirmed.