*2OPINION
By MORGAN, J.This action was filed by the plaintiff in the common pleas court of Cuyahoga- County and sought to recover damages to its truck which plaintiff alleged was in a collision with a passenger bus of the defendant on November 3, 1944, at or near the intersection of Broadway and South Boulevard in Maple Heights. The jury returned a verdict for the plaintiff in the sum of $435.25.
Defendant appellant has filed its “partial bill of exceptions” which contains only the charge of the court to the jury, omitting all the evidence. The defendant’s one assigned error, is error in the court’s charge.
The claimed error of the charge is, contained in the following paragraph:
“And, so, if the plaintiff has proven to you by a preponderance of the evidence that the defendant through the driver of its bus, passenger bus, failed to exercise ordinary care in the manner and method in which he made his turn into South Boulevard at and just prior to this collision, if the plaintiff has proven that to you by a preponderance of the evidence, your verdict will be for the plaintiff, provided, of course, that the driver of the plaintiff’s truck was in the exercise of ordinary-care at and just prior to this collision in the manner and method in which he controlled and operated the truck.”
The court in charging the jury that if its members should find that the driver of defendant’s bus “failed to exercise ordinary care in the manner and method in which he made his turn into South Boulevard at and just prior to this collision * * * your verdict will be for the plaintiff * * *” omitted any statement with reference to. proximate cause. This failure to charge on proximate cause was of course erroneous and the question to be decided is whether or not this failure requires a reversal of the case.
The court earlier in its charge gave a synopsis of the pleadings. He stated that “the plaintiff says substantially further that the defendant the operator of the bus, was guilty of negligence causing the collision * * The court also charged the jury:
“In other words, the plaintiff says that the driver of- the transportation bus was negligent and careless in the manner *3in which he made his left turn into South Boulevard and that this negligence and carelessness on his part directly caused the collision.”
Later in the charge the court stated:'
“Proximate cause is the direct cause or the cause without which the collision would not have occurred.”
It is therefore clear from the court’s charge that the plaintiff’s position in the case was that the driver of defendant’s transportation bus was negligent and that this negligence was the cause of the collision. Furthermore, plaintiff’s position was correctly stated to. the jury.
At the close of all the testimony at defendant’s request, the court charged the jury before argument as follows:
“I hereby charge you, as a matter of law, that if you find from the evidence that at the time of the collision complained of in the petition the vehicle of plaintiff was being operated by an employee of plaintiff who was then and there acting within the scope of his employment and the course of his duties, that, no matter what you may find concerning the claimed negligence on the part of the defendant, 'if you find that the employee of the plaintiff was guilty of negligence, no matter how slight, which proximately caused or contributed to cause the accident complained of, your verdict must be for the defendant.”
At the conclusion of his charge the court said:
“Any suggestions, corrections or additions from counsel?”
The attorney for plaintiff stated that he had no. suggestions. The attorney for defendant aswered, “Yes, Your Honor,” and then made a suggestion which had no reference to the failure of the court to charge on proximate cause. The court accepted the suggestion made by the attorney for the defendant and added the following to his charge:
“I have been requested to say to you members of the jury, that if you find from the evidence in the case that the driver of the truck at and just prior to this collision was operating that truck to the left of the center of the road as he approached that intersection and that his so operating his truck, or *4driving his truck to the left of the center of the road at and just prior to the collision either caused or contributed to cause t-.hig collision directly, then the plaintiff cannot recover in this action.”
,The defendant maintains, that the error in the charge was one of commission and not omission, and therefore defendant did not waive the error by failing to call it to the court’s attention when the court made a request for “any suggestions, corrections or additions.”
If the court had charged that the plaintiff could not recover without proof by a preponderance of the evidence that the defendant was negligent and had said nothing about proximate cause, then the failure to. charge proximate cause would have been clearly an omission. The charge of the court, however, went beyond that and -the court charged the jury that its verdict should be for the plaintiff if it should decide that the defendant “failed to exercise ordinary care or was negligent at the time of the accident.”
The failure of the court to charge on proximate cause was clearly an oversight. It is extremely unlikely that the jury would have been misled thereby as the claim of the plaintiff that defendant was negligent and that this negligence caused the damage was clearly presented in 'the court’s charge.
Finally, a majority of this court is constrained to affirm the judgment for the plaintiff for the reason that none of the evidence in the case is before us. We do not know whether or not the evidence was of such a character as to call for a directed verdict for plaintiff as a matter of law.
In view of the record before us, we are unable to say that the error of the court in the paragraph of the charge set forth, was prejudicial.
The judgment is therefore affirmed.
HURD^ PJ, concurs. SKEEL, J, dissents.