Opinion, per JOHNSON, J. care and scrutiny which might be exacted where there is more time for observation and deliberation." But it is also urged that when the plaintiff jumped on the moving cars and took the position thereon which he describes in his petition and in his testimony, he assumed the risk and contributed to his injury. The questions whether the plaintiff was guilty of negligence under the circumstances, which contributed to his injury, and whether he went upon the car under such circumstances as amounted to an assumption of risk on his part, are questions of fact. As already indicated, much of the testimony offered by the parties was directed to this issue; that is, whether the foreman acting within the scope of his authority ordered the plaintiff to climb upon the cars and occupy the position thereon which he did occupy, whether under the circumstances shown such an order constituted a failure to exercise ordinary care for the plaintiff's safety, and whether plaintiff himself was guilty of negligence in the respects stated. Counsel for the defendant, in the performance of duty, might well argue that in view of all the circumstances shown by the evidence the inference could be properly drawn that the plaintiff was guilty of contributory negligence, which proximately contributed to his injury. But it is the function of the jury to draw this inference and to find this ultimate fact. Section 9018, General Code, provides that in actions against a railroad company operating in this state all questions of negligence and contributory negligence shall be for the jury. Opinion, per JOHNSON, J. In Northern Pac. Rd. Co. v. Egeland, 163 U. S., 93, the plaintiff was a common laborer in the employ of the company. When returning from his work on a train the conductor ordered him and others to jump off at a station, while the train was moving about four miles an hour. The platform was about a foot lower than the car step. His fellow laborers jumped and landed safely. He jumped and was seriously injured. Held, that the court below rightly left it to the jury to determine whether he was guilty of contributory negligence. In commenting on the circumstances of the case, Peckham, J., said, at page 98: "The plaintiff would naturally, therefore, be inclined to obey the orders of such superior, particularly if they were not of an obviously very dangerous character." As we said in Hickman v. Ohio State Life Ins. Co., 92 Ohio St., 87, at page 95: "In order that an issue should be required to be submitted to the jury it is not essential that there be such a conflict in the testimony of different witnesses as makes it necessary for the jury to determine disputes or questions of veracity. That is not the only province of the jury. They have another important function and duty. Where there is no dispute or conflict in the testimony of different witnesses, but nevertheless the unconflicting testimony discloses a variety of circumstances from which different minds may reasonably arrive at different conclusions as to the ultimate fact shown by such evidence, then it is the duty of the jury to determine such ultimate fact, even though the trial judge should himself be convinced as to what the conclusion should be. Of course, Opinion, per JOHNSON, J. when the ultimate fact is undisputed there is presented simply a question of law.” In Cavey, Admx., v. Iliff et al., 84 Ohio St., 456, the circuit court reversed the judgment of the common pleas, on the ground that it erred in overruling the motion of the defendants at the conclusion of the evidence to arrest the case from the jury, and entered final judgment in the case. This court reversed the final judgment and remanded the case for a new trial, because as shown by its entry this court found from the record that the judgment of the circuit court was in effect an adjudication that the judgment of the court of common pleas was against the weight of the evidence. So in the case of Stugard, Admr., v. P., C., C. & St. L. Ry. Co., 92 Ohio St., 318, this court found that it was disclosed by the record that the judgment of the court of appeals was in effect a finding that the judgment of the superior court was against the weight of the evidence, and, therefore, the judgment of the court of appeals rendering final judgment was reversed. Its judgment reversing the judgment of the superior court was affirmed and the cause remanded for further proceedings. In the petition in error filed in the court of appeals the name of the plaintiff in error is given as The Pittsburgh & Lake Erie Railroad Company. This misnomer seems to have been entirely unnoticed by both parties and the court of appeals. The cause now before us was actually considered and adjudged by the court of appeals without objection. Judgment was entered in the court of appeals under the proper name and style, and the petition in error in Opinion, per JOHNSON, J. this court was filed in the proper name and style by Vignola, the plaintiff in error. It is manifest that the defect in the misnomer has been cured by the action of the parties, and it is now too late to make the objection. In this case the court of appeals included in its entry a finding that the trial court erred in overruling the motion of the defendant for a directed verdict at the conclusion of all the evidence, and entered final judgment. From a careful consideration of the whole record we are convinced that this entry of the court of appeals was in effect a finding that the judgment of the trial court was against the weight of the evidence, and, therefore, the judgment of the court of appeals rendering final judgment is reversed, its judgment reversing the judgment of the trial court is affirmed, and the cause is remanded to the court of common pleas for further proceedings according to law. Judgment reversed. HOUGH, WANAMAKER, ROBINSON, JONES and MATTHIAS, JJ., concur. Opinion, per MARSHALL, C. J. THE VILLAGE OF EUCLID ET AL. V. CAMP WISE Assn. Municipal corporations-Waterworks- Constitutional authority to acquire and operate-Section 4, Article XVIII, Constitution, 1912- Free water to charitable institutions-Sections 3963 and 14769, General Code, unconstitutional — Section 26, Article II, Constitution — General laws to have uniform operation. 1. By reason of the adoption of Section 4, Article XVIII of the Constitution, in 1912, municipalities may acquire, construct, own, lease and operate waterworks free from any restrictions imposed by Sections 3963 and 14769, General Code. 2 The obligation imposed upon municipalities having waterworks constructed prior to 1912 to furnish free service to charitable institutions operates as a discrimination against them and in favor of municipalities constructing waterworks after 1912, and therefore Section 3963, General Code, and Section 14769, General Code, in so far as they require free service to charitable institutions, are in conflict with Section 26, Article II of the Constitution of Ohio, requiring laws of a general nature to have uniform operation throughout the state, and therefore inoperative. (No. 16511 Decided March 29, 1921.) ERROR to the Court of Appeals of Cuyahoga county. The facts are stated in the opinion. Mr. Nelson J. Brewer, for plaintiff in error. Mr. Marc J. Grossman, for defendant in error. MARSHALL, C. J. The Village of Euclid, a municipal corporation, owns and operates a municipal water plant. The Camp Wise Association is a charitable organization incorporated under Ohio laws not for profit. Without reciting from the |