(dissenting).
In my view, the judgment of the district court on the verdict of the jury, finding for the defendants, should be affirmed.
In my opinion, the jury was fully justified, not only by substantial evidence but by a preponderance of evidence, in finding that the negligence of Hopwood, appellant’s assured, was the primary negligence which proximately caused the accident for which he had been held, in the original state court action, liable in damages to Loucks.
To maintain the instant action against appellees, the Fornaro Company and the City of Cleveland, the burden rested upon appellant insurer to show by a preponderance of evidence that the appellees were guilty of primary and Hopwood of only secondary negligence. In my judgment, appellant failed to carry this burden.
The majority of the court has found error in the supplemental instruction concerning Sec. 6310-1 of the General Code of Ohio, because, it is said, (1) the instruction did not conform to the statute, and (2) the pleadings and the evidence did not justify the instruction. I cannot concur in either criticism, but think that the district judge charged the jury clearly, succinctly and correctly.
It would seem that the majority of the court has misconceived the extent of the defensive pleading of the appellee, Fornaro Company, in Paragraph 12 of its amended separate answer, which incorporates by reference the record of the proceedings and the transcript of testimony in the original action. The answer was thus made broad enough to cover the defense of any illegal operation of his automobile by Hopwood.
Under such comprehensive pleading, the appellees were entitled to the barricade of the violation by appellant’s insured of any statute of the State of Ohio, embracing, of course, the statute in controversy—Sec. 6310-1 of the General Code. Confronted with a sweeping defensive pleading, appellant failed to avail itself of its right to exact a more definite statement or a bill of particulars, as it should have done were the averments of the answer deemed insufficiently definite or particular to enable it properly to prepare responsive pleadings, or to prepare for trial. Civil Procedure Rule 12(e), 28 U.S.C.A. following section 723c.
I am unable to see error in the abbreviation of Sec. 6310-1 in the district court’s instruction by omission of the qualifying language of the statute, “Whenever there is not sufficient light within the limits of the traveled portion of the highway to make all vehicles, persons, or substantial objects clearly visible within a distance of at least two hundred feet, * * The inclusion of this qualifying language of the statute in the court’s instruction would have been mere surplusage, for the reason that the whole proof, without contradiction, revealed a fact situation for the applicability of the statute. Hopwood, himself, testified that “the ordinary street light” at the in*880tersection was “not a bright light”; and that when the snow was not being blown, his headlights would light up a distance of only 100 to 150 feet, which was cut down considerably when snow was being blown. The young lady who was riding in the car with Hopwood testified that the headlights of the automobile lighted up the roadway ahead some fifteen or twenty feet.
Nowhere in the record do I find any evidence supporting an inference that the light at the intersection or on the highway where the accident occurred would make all vehicles, persons, or substantial objects clearly visible within a distance of at least two hundred feet. Therefore, the omission from the instruction of the qualifying language of the statute was, in my judgment, not erroneous.