OPINION
By PHILLIPS, J.:Plaintiff sued defendant, a municipal corporation, in the Court of Common Pleas, to recover damages for personal injuries sustained by her allegedly as the result of defendant’s carelessness and negligence in failing and neglecting to Keep one of its improved, duly dedicated, and accepted streets open, in repair, and free from nuisance, in violation of the provisions of §3714 GC, and as the owner of the Cleveland Transit System in carelessly and negligently permitting her to alight from one of its street cars, on which she was riding as a paid passenger, on that highway at a point thereon where there was “a triangular hole measuring 1' x 1' x 1' of uneven surface at the bottom” into which she stepped.
By answer defendant denied any failure of duty on its part and charged plaintiff with contributory negligence.
The jury returned a verdict for the defendant, upon which subsequently the trial judge duly entered judgment.
Plaintiff appealed from that judgment to this Court on questions of law.
Plaintiff testified that she was unfamiliar with the place where she alighted, and was last there about six or eight months prior to the time she fell, although during that time *322she worked in the immediate vicinity thereof; that as she alighted she was watching for traffic, and had her eyes fixed on a spot in the highway about five feet away.
One of defendant’s patrolman witnesses, who took plaintiff to the hospital, testified that plaintiff told him “I had gotten off this stop thousands of times before and nothing happened. I didn’t think it was necessary to look.”
Another of defendant’s patrolman witnesses testified that plaintiff told his brother officer that “it wasn’t necessary” to “see that hole.” “I got off that corner thousands of times.”
The evidence presented questions for the determination of the jury as to defendant’s negligence and plaintiff’s contributory negligence; and further reference to it is not necessary to understand the question presented for our consideration and determination by plaintiff’s "sole assignment of error, namely, that the trial judge erred to her prejudice “in charging the jury to consider” the issue of plaintiff’s contributory negligence “first before the issue of negligence,” and in overemphasizing that issue in the entire general charge.
After reciting the claims of negligence made by plaintiff in her petition, defining negligence, burden of proof and proximate cause, the trial judge charged the jury inter alia as follows:
“I will say to you at the outset that the plaintiff must at all times have exercised ordinary care for her own safety, and if her testimony raises the presumption that she failed to exercise ordinary care for her own safety, she is required to meet that presumption. But if no such presumption has arisen, or if such presumption having arisen has been met by her, then the defendant must prove to you by a preponderance of the evidence that she failed to exercise ordinary care for her own safety, and that that failure upon her part either caused or contributed to cause her injuries.
“So that is the first issue you will determine, whether or not the plaintiff exercised ordinary care for her own safety. And if she failed to exercise ordinary care for her own safety and that failure upon her part directly caused, directly and proximately caused or directly and proximately contributed to cause her injuries, she can not recover in this action. Your inquiry would go no further and you would return a verdict for the defendant.
“If on the other hand she was in the exercise of ordinary care for her own safety at and just prior to the time of receiving her injuries, you next would inquire as to the negligence or failure to exercise ordinary care on the part of the defendant.”
*323At the close of the general charge, and after discussion at the bench with counsel, the trial judge further charged the ’ jury in these words:
“I have been requested, and rightly so, members of the jury, to say to you that the plaintiff in alighting from that car must alight as an ordinarily prudent person would alight under the same or similar circumstances.
“If ordinary care upon her part required that she look where she was stepping and that would be required of an ordinarily prudent person alighting from that streetcar, then she would be required to exercise that ordinary care and to use her eyes to see where she was stepping as she alighted from that car.
“I have said to you several times that the plaintiff must at all times have exercised ordinary care for her own safety, and if she failed to exercise ordinary care for her own safety and that failure upon her part either caused directly and proximately or directly and proximately contributed to cause her injuries she can not recover in this action.”
Considering the general charge of the trial judge in its entirety two members of the court conclude that no error intervened which was prejudicial to plaintiff in the respects charged.
The judgment of the Court of Common Pleas is affirmed. Exceptions noted. Order See Journal. See Dissenting Opinion.
GRIFFITH, J, concurs. NICHOLS, J, dissents.