This is an appeal on questions of law. The plaintiff in her petition says that she was a passenger in a pickup truck being operated by her husband in a northerly direction, and that defendant drove a 1960 Plymouth automobile and collided head on with the vehicle in which plaintiff was a passenger; and plaintiff claims that the defendant failed to keep his automobile under control, that he operated it to the left of the center line, that defendant failed to give the *Page 76 approaching vehicle one-half of the main traveled highway, and that plaintiff was injured; and she prayed for damages in the sum of $15,000.
Various motions were filed, and the cause came on before a jury which rendered a verdict in favor of the defendant. A motion for new trial was overruled by the court below, and plaintiff appealed to this court on questions of law and sets out nine assignments of error, which are as follows:
"1. The judgment is manifestly and patently against the weight of the evidence.
"2. The court erred in charging the jury on unavoidable accident.
"3. The court erred in charging the jury that a violation of R. C. 4511.25 might constitute negligence.
"4. The court erred in placing a burden of proof on the appellants in addition to the burden required by law.
"5. The court erred in submitting issues to the jury which had been established by admissions of the appellee and by uncontradicted evidence.
"6. The court erred in giving a special instruction without applying it by apt language to the evidence in the case.
"7. The court erred by giving a misleading charge in matters materially affecting appellants' rights.
"8. The court erroneously rejected evidence offered by the appellants.
"9. The court erred in overruling appellants' motion for a new trial."
The important question to be considered in this case is the Constitution of Ohio, Section 6, Article IV:
"No judgment of any court of record entered on the verdict of the jury shall be set aside or reversed on the weight of the evidence except by the concurrence of all three judges of a Court of Appeals."
At the time this injury occurred and for a short time prior to the same, there was a snow storm, by reason of which defendant's car went to the left of the center and this accident happened.
On this question, I cite 2 Schwartz, Trial of Automobile Accident Cases, 222, commencing at Section 888:
"Section 888. Elements of Prima Facie Case. *Page 77
"The decision of the defendant's motion for a non-suit will necessarily depend upon the determination of whether or not the plaintiff has made out a prima facie case. There are five essential elements in a prima facie case which the plaintiff must establish, to wit:
"(a) The existence of a legal duty owing from the defendant to the plaintiff.
"(b) That the defendant, his servant, agent or employee negligently violated such duty.
"(c) That defendant's negligence was the proximate cause of the plaintiff's injuries.
"(d) That plaintiff was free of contributory negligence or imputed negligence.
"(e) That plaintiff suffered damage because of the defendant's negligence.
"Section 889. (a) Existence of Legal Duty Owing from Defendant to Plaintiff
"The mere operation of an automobile upon the highway gives rise to certain duties which are imposed upon its operator for the protection of other travelers upon the highway. Such duties arise by statute and custom and are incident to the use of the automobile. The exact nature of these duties owing by travelers to each other has been gone into fully in connection with the testimony regarding the facts and need not be repeated here.
"The important question, in so far as the motion to dismiss is concerned, is: has the plaintiff connected up the particular defendant or defendants with the accident? Has he established the identity of the automobile or other vehicle which caused the accident and has he established that the defendant owned or controlled such vehicle?
"The proof of ownership and control may not be necessary where it is admitted in the pleadings. However, an admission of the ownership and control of a certain vehicle is not alone sufficient unless there is a further admission or proof that that particular vehicle was the one which was involved in the accident.
"Where there is no admission in the pleadings, or concession at the trial, the proof may be in the form of testimony by the plaintiff or his witnesses as to the license number or name *Page 78 on the automobile coupled with proof of the registration of such automobile in the name of the defendant.
"The effect of the proof of ownership and the presumptions arising from such proof are considered in a later section.
"Section 890. (b) Negligence of Defendant
"Ordinarily, negligence is not presumed and the plaintiff must prove acts or omissions on the part of the defendant, his servant, agent or employee constituting negligence. The mere happening of an automobile accident does not, ordinarily, create a presumption of negligence on the part of the defendant and is generally insufficient, in and of itself, to make out a primafacie case.
"In certain cases the doctrine of res ipsa loquitur applied and a presumption arises which takes the place of evidence of negligence.
"As a general rule, the plaintiff must establish that the operator of the defendant's vehicle failed in his duty of exercising the care which a reasonably prudent person would exercise under the same circumstances. What the conduct of a reasonably prudent person would be depends upon all the surrounding facts and circumstances. However, such conduct may be defined:
"(1) By Statutory Enactment
"Where the conduct is prescribed by statute or ordinance, a violation of the same may constitute negligence or evidence of negligence.
"(2) By the Courts
"Certain acts or omissions have been held to constitute negligence as a matter of law or due care, and where such facts are shown, the trial court is justified in following the decisions in former cases in ruling on whether a prima facie case has been made out. What constitutes negligence per se has been pointed out at appropriate places in the preceding sections.
"(3) By the Jury
"Generally, the question of whether the defendants' acts or omissions constituted due care or negligence, is for the jury to decide.
"Section 891. (c) Defendant's Negligence the Proximate Cause of Plaintiff's Injuries
"One of the fundamental principles of the law of negligence *Page 79 is that liability for acts of negligence follows only so far as the injuries are the proximate result of the negligence. This rule applies in cases of an automobile accident, and it is held that the owner or driver of a motor vehicle is liable, assuming his negligence, only for such injuries as proximately result from the negligent acts. There must be causal connection between the act of negligence and the resulting injury. On the other hand, the liability of the defendant party generally extends to all injuries which can be found to be the proximate result of the negligent acts."
In regard to the other assignments of error, the writer of this opinion has given careful consideration to the same, and I find no prejudicial error therein.
I have examined the entire record and I think on every question Judge Crossland did a magnificent job in the trial of this case, under the law as herein stated.
For the reasons herein stated, it is my opinion that the judgment of the Court of Common Pleas should be affirmed.