APPLICATION FOR REHEARING
No. 2989.
BY THE COURT:• Submitted on application oí appellant for rehearing and upon motion for certification of conflict.
The application is presented under 14 headings, many of which it is not necessary to discuss because they are not dispositive of any of the ultimate questions of law decided.
In view of the many questions urged for the second time in the application it appears that counsel are desirous of having our opinion on the merits construed. We would commend another reading of our opinion.
The first exception noted is that in our statement of facts we said that the testimony of the witness, Kohne, “gives the version of the happenings which requires the inference that the front of the outfit or the truck struck the plaintiff’s decedent and Willis”. We did not mean to ■ say nor did we say that the front of the truck struck plaintiff’s decedent but that the front of the outfit or the truck struck him. This observation was made to differentiate between the truck and the semi-trailer striking plaintiff’s decedent. The matter commented on is immaterial as it is altogether probable that the jury accepted the theory of the plaintiff to the effect that the skidding trailer struck plaintiff’s decedent.
The second, fifth, seventh and eighth observations are directed to our. discussion of the language of §6310-34, GC. Nothing of advantage will result ay further comment on'this section. It ■was discussed at great length in the briefs and we deemed it worthy of attention and expressed our opinion upon the subject matter of the section-. However, what we said was in no sense determinative of any controlling question in the ease-because the trial judge had charged the jury without- qualification that a violation of the section was negligence per se leaving the determination whether or not such violation was a proximate cause- of Sprung’s injuries and death to tne jury. So that the discussion relative to the possibility that the jury may not have found the statute to have been violated is largely academic. However, we reiterate 3,11 that we said respecting cinder paths or crosswalks paralleling Telegraph Road and we reassert that there is nothing in the section which made it mandatory upon Sprung to walk upon the sidewalk and that it provided where he should not walk and not where he should walk. Without respect to the date when this particular section was enacted we are satisfied that the term “crosswalk” therein employed harks back for its interpretation to a time prior to the automooiie.
Upon the observations respecting the contributory negligence of plaintiff’s decedent we are content to rely upon our original decision.
The third ground of the application directs attention to Smith v Zone Cab Company, et, 135 Oh St 415, which we cited upon the question of Sprung’s contributory negligence upon the claim of the appellant that his violation of §6310-34, GC, constituted a proximate cause of his injuries as a matter,of law. Notwithstanding counsel’s assurance that this case has no application be-cause the facts are not. identical with the instant case it is our judgment that it is a blue-bottle decision and that no distinction can be made in the principle there announced and the principle controlling in this ease. The very first, statement -in the opinion of Judge Day states the question there decided:
*296“The question is whether the mere violation of an ordinance which prohibits a pedestrian from crossing between street intersections is to be deemed, as a matter of law, the proximate cause of appellant’s injuries.”
The facts in the case disclose clearly that Smith, when he was struck, was violating the ordinance which prohibited a pedestrian from crossing between street intersections. Of course, there were other facts in .the case relating to the question of due care of plaintiff but the narrow and controlling question presented and determined is identical with that appearing in this case.
The fourth observation is directed to our observation respecting the “invited error” on behalf of defendant. We made plain in the decision that the action of the defendant which prevented its urging error to the general charge as related to proximate cause as a matter of law did not preclude its right to urge this question as related to the motions for directed verdict and for judgment veredicto non obstante. (See page 13, 2nd paragraph, our decision). The principle upon which we relied for the application of “invited error” is again stated in Gregg, et v Clapham, et, 6 Oh Ap 367, wherein it is said after-quoting an instruction requested by defendants below,
“This charge as to law was given by the trial judge at the request of the defendants below and we do not see how they can now complain.”
The sixth claim is directed to our observation respecting the admissibility of testimony as to the knowledge of Sprung of the sidewalk along Telegraph Road. We cited the question that had- been propounded to Kohne and his. answer, without objection, to show that like testimony of Willis, accepted under objection, could not have been, prejudicial. Of course, we were further of opinion that it was competent for the reasons set forth. Opinion, pp. 10, 15, 16.
The eleventh and twelfth grounds of the application are sufficiently considered in our opinion on the merits.
The thirteenth ground assigned relates to excessriveness of the verdict and takes exception to our statement that excessiveness of verdict was not assigned as error in the brinted brief. Technically, we were in error in our statement. Practically, we were correct. It is true that this ground is assigned under number 10 but there is not one word of discussion relative thereto in the printed brief of defendant-appellant. However, all of this is beside the question because we gave careful and extended consideration to this assignment of error in our former opinion.
The application for rehearing will be overruled.
The motion of appellant is for certification of conflict of our judgment with Barber v Kihlken, Admit, 17 Abs 599; Lazzara v Hart, 45 Oh Ap 368; Moor v Merkle, 47 Oh Ap 533; Hoge v Soissons, 48 Oh Ap 221. A careful reading of Lazzara v Hart, supra, discloses that it is not in conflict on the question presented.
In the instant case the trial judge charged that violation of §12603-1, GC, was negligence per se. This is in conflict with the other cited cases. However, we did not give extended discussion to the part of the charge • directed to this statute because we are satisfied, if erroneous, it is not prejudicial under the two issue rule. Sites v Haverstick, 23 Oh St 626; Schmidt v Kinney, 19 Abs 261; Armour & Co. v Yoder, 11 Abs 186.
It is our judgment that the charge of the trial court in the particular under consideration was not prejudicially erroneous and intended to so state at the bottom of page 20 of our opinion, although it seems that -1 after §12603 may have been stricken from the copies sent to counsel.
In Skinner v Rd. Co., 127 Oh St 69, wherein it is held that a violation of §12603, GC, as relates to the assured clear distance ahead portion thereof is negligence per se:
*297“It is contended by plaintiff in error that the decisions in the cases of Heidle v Baldwin, 118 Oh St 375, and Geo. Ast. Candy Co. v Kling, 121 Oh St 362, * * *, should be considered as controlling in the instant case and this new language in §12603, GC, does not declare a definite rule of conduct. It must be remembered that- in these cases this section of the code was not under consideration. It must be remembered also that the other language of this section has repeatedly been held a sufficiently definite and certain rule of conduct to make its violation negligence per se.
In the opinion in the case of State v Schaeffer, 96 Oh St 215, appears this expression, at page 236, * * * ‘§12603, GC, is as definite and certain on the subject matter and the numerous situations arising thereunder as the nature of the case and the safety of the public will reasonably admit.’"
The Chief Justice in this latter quoted part of the opinion is referring to that part of §12603, GC, which makes it illegal to operate a motor vehicle upon the public roads and highways at a speed greater or less than is reasonable or proper, etc. It will require very fine differentiation to make distinction between this part of §12603, GC, and the language of §12603-1, GC. If the-former meets the requisites of definiteness in prescribing a course of conduct we perceive no .good reason why the latter does not also define a specific course of conduct.
We do not understand that it is óur obligation to certify that there is conflict of judgment under the constitution1 merely because there is a difference of pronouncements of this court and another court • of appeals upon some one question presented in. the ease. The conflict to which-‘the constitution relates is upon some matter which is so material to’the judgment that it is determinative- thereof. If it be granted that the' court erred in charging that a violation of §12603-1, was negligence per se this..alone would not require us to reverse the judgment.
The motion for certification will be overruled.
HORNBECK, PJ. & GUERNSEY, J„ concur.