(dissenting).
I am of the opinion that the instruction of the court complained •of hy defendant was not reversible error as to him, for it was responsive to the issue tendered by him. If there was no evidence on his part tending to support the issue, the plaintiff might have complained of the error, but not the defendant. Again, the record is practically conclusive that the defendant was not prejudiced by the submission of the issue; for if there was no evidence tending to support the issue, then the specific testimony of the plaintiff as to the •contract of hiring was undisputed. There was nothing improbable in his testimony, and if undisputed it could not be arbitrarily rejected.