dissenting:
I find that I must dissent from the majority opinion. It is true that the plaintiff crossed Livingston Avenue at a point where she desired to board a street car to take her to her destination. In crossing at the point between the two intersecting streets she violated a statute, but I am of the opinion that her negligence in this respect was not the proximate cause of her injury. She had reached a point upon the street where any act that might otherwise have contributed to her own injury had been completed, and a point on the street from which her further passage to the curbstone was not negligence. The accident occurred solely by the act of the defendant in the method in which he drove his car and the condition of his windshield and also his failure to discover the plaintiff at a point where he could have easily avoided striking her, if his lights were operating as he claimed. The testimony of the young man who first went to her aid clearly establishes that the injury was due solely to the negligence of the defendant in driving his car, and that the negligence of the plaintiff in crossing the street at the point where she sought to board a street car was not the proximate cause of the injury.
I am of the opinion that the facts in this case clearly bring it within the principles of Smith v Zone Cabs, 135 Oh St 415, and Trentman v Cox, 118 Oh St 247.
These two cases clearly point out the distinction between “negligence per se” and “proximate cause”, and both cases *266make it clear that under the circumstances surrounding the present case the question should be submitted for the determination of the jury. Certainly reasonable minds might differ as to the cause of this accident and to whose negligence it should be attributed. If reasonable minds would differ the cjase becomes one for the jury and as a reviewing court we should not set aside a verdict otherwise free from prejudicial error.
Decided December 11, 1943. Arnold, Wright, Purpus & Harlor, Columbus, for plaintiffappellee. Phil S. Bradford, Columbus, and Clifford L. Rose, Columbus, for defendant-appellant.The majority has pointed out a number of matters asserted to be prejudicial error. I do not agree with the majority on these assignments of errors and even though they be correct they would only result in requiring a new trial, and the majority, I believe, is incorrect in decreeing judgment for the defendant.