dissenting. The Court of Appeals correctly determined that the trial court committed reversible error by submitting an instruction to the jury on contributory negligence, and therefore properly remanded the case to the common pleas court for a new trial.
The record supports the Court of Appeals’ determination that there was no evidence that plaintiff came onto or ever walked on the paved portion of the highway before being hit. Nothing in this court’s majority opinion contradicts that determination or supports an inference of contributory negligence sufficient to uphold the trial court’s instruction. Moreover, the logic of upholding a contributory negligence jury instruction based on an inference that plaintiff was walking on the paved portion of the road before being hit, yet denying the propriety of instructing the jury on the defendant’s violation of the assured clear distance rule upon plaintiff’s request, escapes me. Just how plaintiff could be on the paved portion of the road yet not be a discernible object in defendant’s line of travel, thus requiring an instruction on the assured clear distance rule, is not explained by this court, nor by the trial court, and defies rationality.*
*212Also, I disagree with the misapplication of the plain error exception to the rule that a party must object to any instruction before the jury retires.
First, the majority blithely states that “plaintiffs failed to timely object to the charge of contributory negligence * * Following the trial court's charge, counsel for plaintiffs made the following objection to the instructions:
“Let the record show that during the discussion concerning the Charge, counsel for the Plaintiff requested the Court to instruct the Jury that it does not make any difference whatsoever what direction the Plaintiff is walking, whether toward or against the traffic, as long as she is on the berm of the highway.
<<* * *
“And that the Court did not include that as part of his Charge. And for that reason, counsel objects to each and every sentence of said Charge and every word thereof, as this is a vital portion of the Court’s instructions.” (Emphasis added.)
Thus, counsel for plaintiffs preserved their objection to the jury instruction dealing with the critical issue of plaintiffs presence on the berm of the highway and not on the highway itself, all of which is equivalent to objecting to the giving of a jury instruction on the issue of contributory negligence.
Second, the Court of Appeals properly had the issue of the *213contributory negligence charge before it when it reversed the trial court. The majority opinion finds no error actually alleged concerning the charge on contributory negligence in the assignments of error filed in the Court of Appeals. However, I would hold plaintiffs’ first assignment of error to the Court of Appeals sufficient to raise the issue. That assignment reads: “The charge of the court to the jury was incomplete and misleading.” The Court of Appeals considered in detail the propriety of the contributory negligence instruction under this assignment of error. To conclude that the above assignment of error did not adequately challenge the erroneous contributory negligence charge is a position unduly harsh and hypertechnical. This state has rejected the principle of form pleading by adopting the Rules of Civil Procedure. Our purpose and function is neither to create petty precedents nor to erect legal barriers which prevent justice being attained, but to see that justice is done. Such purpose requires approval of the keen analysis and cogent majority opinion of Judge John T. Patton for the Court of Appeals and affirmance of its judgment. Therefore, I dissent.
The majority opinion’s conclusion that the trial court properly refused a charge on “assured clear distance” and correctly charged on contributory negligence is based *212on the authority of Erdman v. Mestrovich (1951), 155 Ohio St. 85. Erdman is distinguishable and inapplicable to the facts in this case. In Erdman the plaintiff pedestrian suddenly entered the lane of travel of defendant’s vehicle, a situation where clearly and correctly the assured clear distance rule is inapplicable, as expressed in paragraph three of the syllabus of Erdman as follows:
“Where a pedestrian crossing a street intersection enters the path or lane of travel of a motor vehicle approaching the intersection at a right angle to the path of the pedestrian and the pedestrian by his act enters suddenly the vehicle operator’s assured clear distance ahead, at a point less distant than the forward limit thereof, and is struck by the vehicle, a charge to the jury in a personal injury action by the pedestrian against the operator predicated on a violation of the assured-clear-distance-ahead rule should not be given, unless there is evidence tending to show that the pedestrian came into the operator’s assured clear distance ahead at a point sufficiently distant ahead of the motor vehicle as to have permitted the operator, in the exercise of ordinary care, to have stopped his motor vehicle before striking the pedestrian.”
By contrast in the present Schade case there is no evidence that plaintiff Schade ever entered, suddenly or otherwise, the defendant-appellant Braden’s lane of travel. In Erdman the plaintiffs sudden entry into defendant’s lane of travel raised the issue of contributory negligence. But in the present Schade case there is no such evidence.