On the evening of Nov. 7, 1920, Esway went, with some friends into the machine of Valley, another friend. He and they intended to go to Esway’s home.' To follow the route open at that time, leading to Esway’s home, it was necessary to travel down Third street; but due to bad weather conditions, Valley passed Third and drove down Second street, unnoticed by the others in the machine. A creek intersected Second street at its terminii over which stood a solid concrete wall. The automobile, driven by Valley, struck the wall, and Esway, in the back seat, was thrown headlong over the wall sustaining injuries about the head and legs.

In his petition in Common Pleas, Esway alleged negligence on the part of the city in construction and maintenance of said wall. Such negligence was denied by city, and they in turn interposed the defense of contributory negligence; claiming that Valley was intoxicated.

The case went to trial on these pleadings, and verdict for the city was returned. In the Court of Appeals the judgment of the trial court was affirmed.

In his prayer to the Supreme Court, Esway contends:

1. The trial court charged the jury that if joint enterprise existed between Valley and Esway, and Valley was negligent, then this negligence should be computed to Esway.

2. No such issue as outlined above existed in the pleadings.

3. The evidence brought out in the record does not tend to show that joint enterprise existed.