James Young, filed suit against the Cincinnati Traction Company, for injuries which he sustained when a wagon in which he was driving collided with a street car of the defendant company at Ninth and Elm streets in Cincinnati on December 3, 1921. The jury returned a verdict for Young for $2,000. Subsequent to the verdict but before the judgment, Young died from causes not connected with his injuries and the action was revived in the name of Phoebe Young, his wife and executrix of his estate.

Young, it seems, was driving westwardly on Ninth street and the street car was going northwardly on Elm street. Young claimed that the accident was the result of the careless manner in which the motorman operated the street car. The answer of the Company denied this negligence and then asserted that the accident was caused through the sole negligence and carelessness of the plaintiff.

At the close of the case and before the arguments to the jury, the_ defendant Company requested the court in writing to give the following special charge:

“The court charges you that if you find that the plaintiff was guilty of negligence that directly contributed in any degree to the happening of the collision then the plaintiff cannot recover and your verdict must be for the defendant.”

The court, upon the plaintiff’s request, charged the jury as follows:

“Members of the Jury: I charge you as a matter of law that the plaintiff may recover in this action, notwithstanding the fact that his own negligence exposed him to the risk of the injury of which he complains, if the defendant company or its duly authorized agents and servants in that behalf, became aware or ought to have become aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.”

The judgment of the Hamilton Common Pleas was affirmed by the Court of Appeals.

The Company, in the Supreme Court, contends:

1. _ The court erred in refusing to give the special charge requested by it in reference to contributory negligence. “In a collision case no recovery can be had for injuries from defendant’s negligence when it appears that plaintiff’s own negligence directly eontributeu in any degree to the injuries complained of.”

2. That the court erred in giving the special charge requested by the plaintiff.

3. That the court erred in refusing to charge on the issue of contributory negligence. It is claimed that when the defendant’s answer pleads a general denial; and that injuries were caused wholly by negligence of the plaintiff, it becomes the duty of the court to charge upon the issue of contributory negligence raised by the evidence.