*609Opinion,
Me. Justice Stekrett:It appears that William M. Fowler, drawn as a juror in this case, was challenged for cause, by plaintiff below, on the specific “ground that he is a member of the select council of the city of Scranton,” the corporation defendant, and for that reason alone the challenge was sustained. That action of the court was contrary to the express provisions of the act of April 16, 1840, P. L. 411, which declares : “ No person shall be excluded from being a juror in any suit, prosecution or proceeding, in which any county, city, incorporated district, borough or township is a party or is interested, by reason of such person being or having been an officer, rated citizen or inhabitant in such county, city, district, borough or township, or owning assessed or taxable property, or being liable to the assessment or payment of any tax thereon.”
The exclusion of the juror, for the only reason assigned, was clear error. It is no answer to say that defendant below was not prejudiced thereby. For aught we know the action of the court may have resulted in the selection of a jury composed of one or more persons who would not otherwise have been impaneled and sworn to try the cause; and, what the effect of that may have been, we have no means of knowing. But, aside from that, the action of the court was illegal, and that of itself demands a reversal of the judgment. The question is not whether the jury that rendered the verdict was composed of impartial men or not, but whether the jury was selected in accordance with the law.
There is no merit in the second and third specifications. The points for charge recited therein were rightly refused.
There was no error in refusing to charge as requested in defendant’s ninth point, and thus withdraw the case from the jury. The allegations of fact, embodied in the point, if true, were evidence of contributory negligence, but the question was one of fact for the jury on all the evidence before them.
Judgment reversed, and a venire facias de novo awarded.