It is my view that the facts in the case now before this court are not analogous to the facts in Rhoades v. City of Cleveland,157 Ohio St. 107, 105 N.E.2d 2. The Supreme Court decided in the Rhoadescase, supra, that the error complained of was an error of omission, which omission was not called to the attention of the trial court. The syllabus in the Rhoades case, supra, is as follows:
"Where claimed errors in the charge of the court are errors of omission and not errors of commission, unless counsel has requested the court to supply the omissions, such errors of omission will not ordinarily justify a reversal. (Section 11560, General Code, applied.)"
It is my view in the case before us, that there was an error of omission and also an error of commission in the charge of the court to the jury. It is the error of commission in the charge of the trial court which distinguishes this case from theRhoades case, supra. The charge of the court in the Rhoades case was applicable to the issues as shown by the evidence in that case, but the same or a similar charge was erroneous when applied to the evidence in the case now before us.
In the case now before this court, the amended petition charged negligence against the defendant as follows:
(A) In operating said automobile without having same under control. *Page 483
(B) In failing to stop or decrease his speed or change the course of his path so as to avoid colliding with plaintiff's automobile.
(C) In failing to stop within the assured clear distance ahead, which failure resulted in striking the automobile operated by the plaintiff.
The undisputed evidence on the trial of the case, is that the defendant operated his automobile into collision with the rear of plaintiff's automobile while travelling in the same direction in the same traffic lane.
It is clear, therefore, that the defendant violated the law as to the assured clear distance, as provided in Section 4511.21, Revised Code.Bickel v. American Can Co., 154 Ohio St. 380, 96 N.E.2d 4.
The trial court charged the jury with respect to the law applicable to the grounds of negligence contained in specifications (a) and (b) as set out above, but omitted and failed to charge or give the jury instructions as to the law applicable to the assured clear distance as set out in specification (c) of the amended petition.
The undisputed evidence that the defendant had violated the rule as to the assured clear distance made a charge on specifications (a) and (b) not only unnecessary, but when applied to specification (c) (the assured clear distance), could not fail to mislead and confuse the jury.
The part of the charge of the trial court pertinent here is as follows:
"Now, ladies and gentlemen of the jury, the statutory law of Ohio provides that it shall be unlawful to operate a motor vehicle upon a public highway so as to endanger the life, limb or property of any person while in the lawful use of the highway. It was the duty of the defendant in this case to keep a lookout ahead. The defendant was required under the law to look to the front of the vehicle in the direction in which he was proceeding to the end that he might so operate his motor vehicle so as to avoid collision and injury. Both plaintiff and defendant are chargeable under the law with knowledge of such traffic conditions in the highway over which they were travelling as were reasonably discernible in the exercise of ordinary care. The *Page 484 law requires that all motor vehicles be equipped with signalling devices for giving signals, if the occasion so requires, and also equipped with a steering device and sufficient brakes to control said motor vehicle at all times; all to the end that such vehicles may at all times be under the guidance and control of the operator thereof, so that they may be guided, checked, and controlled in the exercise of ordinary care. In other words, it was the duty of the defendant, not only to keep a lookout ahead, but to keep the motor vehicle operated by defendant under such control that he could properly guide, check, and control it, reduce its speed or entirely stop it within a reasonable distance, if the circumstances were such as required defendant to do any, or all of these things, in order to bring defendant within the rule of using and exercising ordinary care under the circumstances existing at said time and place.
"In the course of these instructions I have outlined and defined to you the legal rights and duties of both the plaintiff and the defendant. I shall now summarize the issues to be determined by the jury and shall instruct you concerning them.
"First of all, you must determine whether or not the defendant was negligent in any of the respects alleged in the amended petition. If the defendant was not negligent, then you should return a verdict in favor of the defendant. If, on the other hand, you find that the defendant was negligent, you must then proceed further and determine whether such negligence was the proximate cause of the injury and damage sustained by the plaintiff. If such negligence was not the proximate cause of the injury and damage, you should return a verdict in favor of the defendant."
The charge of the court that it was the duty of the defendant to exercise ordinary care in keeping a lookout and to operate his automobile so as to avoid a collision, was prejudicially erroneous, when applied to the undisputed evidence in the record, that the defendant had violated the law as to the assured clear distance ahead.
There was not only an omission to charge on the assured clear distance, but the jury was instructed that the law required the defendant to exercise ordinary care. In effect, the jury was instructed that it could determine whether the defendant *Page 485 had been guilty of negligence, when the undisputed evidence was to the effect that defendant had violated the rule of the assured clear distance ahead.
The dissimilarity in the facts in the Rhoades case, supra, can be shown by a quotation from the opinion by Hurd, J., in the decision of the Court of Appeals, Rhoades v. City of Cleveland, 60 Ohio Law Abs., 159, at page 162, 100 N.E.2d 705, as follows:
"A witness who was walking south on E. 93rd Street corroborated plaintiff's testimony to the extent that while he was walking south on the west side of E. 93rd Street he saw plaintiff's car stalled on the northbound tracks; that the northbound street car was then about 200 feet from the stalled car; that when the street car was about 100 feet from the stalled car the motorman began to sound the gong and kept it up until the automobile was struck; that he did not know plaintiff before that time; that when he first saw the street car it was moving at from 20 to 25 miles per hour and continued at that speed until the collision.
"Defendant presented evidence through the testimony of the motorman of the street car and another witness who had been walking south on East 93rd Street toward Carton Avenue at the time of the collision in support of its contention that plaintiff turned suddenly and without warning from behind the southbound street car directly into the path of the northbound street car which was then only 20 to 30 feet away, a distance within which it was impossible to avoid the collision.
"This conflict in evidence presented issues of fact for determination of the jury under proper instructions of law by the court."
The petition of the plaintiff in the Rhoades case charged that defendant was negligent as follows:
"1. Under the doctrine of last clear chance.
"2. Failure to maintain proper control of the street car.
"3. Failure to stop or abate the speed of the street car.
"4. Failure to maintain proper lookout.
"5. Operating a street car at a speed greater than would permit its stoppage within the assured clear distance ahead."
In view of the conflict in the evidence in the Rhoades case, *Page 486 a charge of the court applicable to the foregoing specifications of negligence was necessary and proper, while in the case at bar, where there was no conflict in the evidence, the charge was not applicable and was prejudicially erroneous.
In the case at bar there is an error of omission and also an error of commission.
The decision of the Supreme Court in the Rhoades case, supra, did not determine that an error of omission and an error of commission were not prejudicially erroneous. To the contrary, in the opinion in the Rhoades case, supra, Taft, J., recognizes and approves the rule applicable here, 157 Ohio St., p. 115:
"It is arguable that, where there has been an error of commission, a reviewing court may, in determining whether that error was prejudicial, consider its effect in the light of errors of omission in the charge which were not called to the trial court's attention. That is apparently what the majority of this court had in mind, as indicated by what it did say and what it omitted to say in the syllabi in Telinde v. Ohio Traction Co.,supra, and Simko v. Miller, supra. However, in the instant casethere was no such error of commission." (Emphasis added.)
There was no error of commission in the Rhoades case, but the charge of the court in the case at bar was an error of commission, and the court also failed to charge with respect to the law as to the assured clear distance ahead.
The two-issue rule does not apply, where, as here, the court has charged the jury erroneously, with respect to negligence on the part of the defendant. Bush, Admr., v. Harvey Transfer Co.,146 Ohio St. 657, 67 N.E.2d 851.
It is my opinion that the judgment of the Court of Common Pleas should be reversed and the cause remanded for a new trial. *Page 487