held:
1. The issue in the cause presents a question of negligence as the foundation of the plaintiff’s right of recovery, and a jury having, been waived, the court have found for the plaintiffs on the issue made, and judgment has been entered thereon, and the cause coming up on a petition in error, founded on an agreed statement of the facts, but omitting a statement whether there was negligence or not, this court can not find that fact contrary to the finding of the court below, the question whether there was negligence or not being not a question of law merely, but a question of fact, to be found from the testimony.
2. Had the parties proceeded, under the 280th section of the code,, with a view of excepting to the decision of the court below, upon the questions of law involved in the trial, it would have been the duty of the court to state, in writing, both the conclusions of fact and the conclusions of law, separately.
Judgment of the common pleas affirmed*
Swan, Brinkerhoee, Soott, and Sutliee, JJ., concurred.