#### Betras, Admr., Appellee, *v.*G. M. McKelvey Co., Appellant.

(No. 30970

Decided November 26, 1947.)

*525*Mr. Peter B. Betras,*for appellee.

*Mr. David C. Haynes,*for appellant.

Turner, J.

The question for decision is: Did’ the Court of.Appeals err in affirming the judgment: of the trial court notwithstanding the answers of the jury to the two interrogatories set out above?

The Court of Appeals journal entry contains the following:

> “* * * the court finds that there is no error manifest upon the face of the record in said orders and judgment of said Court of Common Pleas.”

The motion to certify was sustained upon the representation that the affirmance of the trial court A judgment by the Court of Appeals was under the doctrine of comparative negligence.

While the judgment of affirmance was concurred in by all members of the Court of Appeals, the opinion apparently was not concurred in by two of the judges. Therefore, it will be necessary in discussing the opinion to refer to it accordingly.

The writer of the Court of Appeals’ opinion answered the question here for decision in the affirmative-as follows:

> “The answers to these interrogatories [set out in statement] clearly indicate that the jury found plaintiff was guilty of negligence as a matter of law at the-time and place she was struck and injured.” (For reasons stated later, we do not agree with this conclusion.)

However, the writer of such opinion came to the further conclusion that this court had adopted the-*526doctrine of comparative negligence and, therefore, gave that as his reason for affirming the. judgment of the trial court.

The case of *Smith*v. *Zone Cabs, a Partnership,*135 Ohio St., 415, 21 N. E. (2d), 336, came to this court from that same Court of Appeals. In the course of such opinion the writer said:

> “In the *Smith case*this court found (and so stated in our opinion, *although*recognition> *of that fact was not given in the opinion in the Supreme Court,)*that ¡reasonable minds could not differ but must find that plaintiff’s negligence directly and proximately contributed to his injuries. The writer of this opinion remains of the view that Smith’s injuries were brought about by'the concurrent negligence of both parties directly and proximately operating; * * *. [Italics ours.]

> “It necessarily follows from the *Smith case,*as followed and approved in the *Glasco case [Glasco*v. *Mendelman,*143 Ohio St., 649, 56 N. E. -(2d), 2101, that the doctrine of contributory negligence as heretofore well known and universally applied by the courts of Ohio is now supplanted by the doctrine of comparative negligence, the comparison resting with the jurors as the possessors of reasonable minds. * * *”

The conclusion drawn in such opinion from the *Smith*and *Glaseo cases*is wholly unwarranted.

This court did not in either the *Zone Gabs case*or in the *Glaseo case*adopt the doctrine of comparative negligence. What was held in both those cases was' that where reasonable minds may differ on the conclusion to be drawn from the evidence on whether .a plaintiff’s negligence directly contributed to produce his own injury the determination of such question of proximate cause was for the jury. On this •-phase of the case it was stated in the syllabus of the *'.Zone Gabs case*as follows:

> *527“In a personal injury action by a pedestrian against an operator of a motor vehicle, where it appears from the evidence that the pedestrian is guilty of negligence *per se** * * the issue still remains as to whether-pedestrian’s negligence directly contributed to produce his own injury and is one for the jury provided the state of record is such that reasonable minds may differ on the conclusions to be drawn from the evidence on that issue.” .

Paragraph one of the syllabus'in the *Glaseo case*reads:

> “In an action for personal injury where the jury determined that the negligence of the defendant was the sole proximate cause of the injury (even though plaintiff admittedly was guilty of negligence) and judgment was entered upon such verdict, on appeal on questions of law alone, a Court of Appeals is without authority to reverse such judgment and to render final judgment in favor of the defendant, where the evidence is such that reasonable minds could come to different conclusions upon the question of proximate cause.”

The theory of comparative negligence was neither raised nor discussed in the trial court in the instant case. However, negligence and contributory negligence were both raised and both properly charged upon.

The trial court in the charge to the jury said:

> “Now, if you find the decedent to have been negligent directly contributing to bring about her own injury, then the defense of contributory negligence is a defense in the action and there could not be any recovery. If, upon the other hand, you fail to find that she was contributorily negligent, that is,' negligence directly contributing to bring about her own in*528juries, the defense of contributory negligence is not made out and it is not a defense to the action.

> “Now, to sum up the issues, if you find, by the greater weight of the evidence, first, that the defendant was negligent in any respect, as claimed in the petition, and that negligence directly and proximately caused the decedent’s injuries, then your verdict is for the plaintiff against the defendant, providing you further find the decedent to be free from any negligence directly contributing to bring about her own injury. If, upon the other hand, you fail to find, by -the greater weight of the evidence, that the defendant was negligent in any respect as charged, or if you find the defendant to have been negligent in one or more of the respects charged, but you fail to find, by the greater weight of the evidence, that that negligence directly and proximately caused the decedent’s injury, or if your finding should be that the decedent herself was negligent, directly contributing to bring about her own injury, then, and in those events, or any one of them, your verdict would be for the defendant.”

As the evidence in this case was in conflict as to whether plaintiff’s negligence, if any, was a proximate cause of her injuries the trial court properly left the question to the jury under proper instructions.

The answers to the interrogatories disclose that plaintiff was negligent in attempting to cross the street, but neither of the answers disclosed that such negligence was a proximate cause of her injury.

As the bill of exceptions discloses some evidence from which the jury might properly make its finding, we are bound by the verdict of the jury that decedent’s ¿negligence, if any, was not a proximate cause of the Injury.

In defendant’s brief it is said:

> '“The only evidence as contained in the bill of ex-*529eeptions and submitted by the plaintiff in the Common Pleas Court, was to the effect that the decedent came out of the most northerly entrance of the Dolak grocery store (plaintiff’s exhibit C — about thirty-five feet north of the northeast corner of the intersection of Steel street and Midland avenue), turned to her left, walked to the customary crosswalk, stood at the curb, looked both ways, proceeded to cross, and when out beyond the center of said intersection, was struck by defendant’s automobile traveling at an excessive rate of speed.

> “The foregoing theory, upon which plaintiff predicated her law suit, was corroborated by all of the evidence introduced by plaintiff. The jury, however, apparently did not believe any of the plaintiff’s testimony since they answered interrogatories numbers 1 and 2 in the affirmative.”

The jury’s verdict and the answer to the interrogatories do not justify the foregoing conclusion of defendant.

No interrogatory was submitted to the jury as to whether any negligent act of plaintiff’s decedent was a proximate cause of her injury. The answers to the interrogatories not being inconsistent with the jury’s verdict, the trial court committed no error in overruling both the motion for judgment *non obstante veredicto*and the motion for new trial, and the Court of Appeals committed no error in affirming the judgment of the trial court.

Therefore, the judgment of the Court of Appeals should be and hereby is affirmed.

*Judgment affirmed.*

Weygandt, C. J., Zimmerman and Stewart, JJ., concur.

Matthias, Hart and Sohngen, JJ., dissent.

*530Hart, J.,

dissenting. I fully concur with the majority opinion in this case so far as it holds that the doctrine of comparative negligence' was' not adopted by this court in either the case of *Smith*v. *Zone Cabs, a Partnership,*135 Ohio St., 415, 21 N. E. (2d), 336, or the case of *Glasco*v. *Mendelman,*143 Ohio St., 649, 56 N. E. (2d), 210. The comparative-negligence doctrine has never been recognized by the state courts in this state except as such doctrine is required to be applied by statute (Section 6245-1, General Code, in actions for personal injury by an employee against his employer due to the negligence of the latter, or Section 9018, General Code, in actions for personal injury by an employee against a railroad company as his employer due to the negligence of the latter).

I dissent in this case, however, as I did in the case of *Smith*v. *Zone Cabs, a Partnership, supra,*because, in my opinion, the plaintiff in that case, as well as plaintiff’s decedent in this case, was guilty of contributory negligence as a matter of law, and proximate cause, under the facts, was not an issue for the jury in either ease.

The defendant’s motion for judgment after the verdict in the instant case was not a motion under Section 11600, General Code, for judgment because the answers to interrogatories are inconsistent with the general verdict, but a motion under Section 11601, General Code, for judgment notwithstanding the verdict. Under Section 11601, General Code, as amended, effective September 2, 1935, on defendant’s motion for judgment notwithstanding ’ the verdict, the court may look not only to the pleadings but the evidence, and, in my opinion, to the whole record including any facts which the jury may have found as shown by answers to interrogatories submitted to it.

It is true in the instant case there was some dispute *531in the testimony as to the point at which plaintiff’s decedent crossed the street, but that' controversy was resolved into certainty by the jury in answering an interrogatory to the effect that she did not attempt to cross the street at the crosswalk. The undisputed evidence also shows that she entered the street between two parked automobiles and after she was struck down by defendant’s automobile she was lying on the street at a point not more than thirty feet or thirty-five feet from the crosswalk. With these matters indisputably determined, it necessarily followed that plaintiff’s decedent was guilty of contributory negligence as a matter of law, and no fact bearing upon the‘issue of proximate cause was left in controversy.

The violation of the statute by plaintiff’s decedent in this case, continuing to the moment of impact with defendant’s automobile, brought her into a zone of danger, which made her conduct a proximate cause, of her injury. Clearly, but for the violation of the statute, her injury would not have occurred., In other words, the violation of the statute on the part of the plaintiff’s decedent unquestionably contributed to the untoward result which it was the design of the statute to prevent, and on this point, it seems to me, reasonable minds cannot differ. The only method by which the plaintiff in this case could escape a bar to recovery because of the contributory negligence of plaintiff’s decedent would be to establish a case supporting the doctrine of last clear chance, which was neither pleaded nor proven.

If in every personal injury case in which the. contributory negligence of the plaintiff is made a defense the question as to whether such contributory negligence is a proximate cause of plaintiff’s injury must be one for the jury, then in no such case may the trial court direct a verdict for the defendant on the *532ground of the contributory negligence of the plaintiff even though, as here, it be contributory negligence as a matter of law. I cannot concur in a rule which renders a trial court so impotent in the exercise of its functions or the discharge of its duties.

Heretofore, under similar circumstances this court has approved directed verdicts and judgments for defendants notwithstanding the verdict, on the theory that; in those instances, both negligence and proximate cause under undisputed facts presented only questions of law. *Lake Shore & Michigan Southern Ry. Co.*v. *Liidtke, an Infant,*69 Ohio St., 384, 69 N. E., 653; *Davis, Agent,*v. *Atlas Assurance Co., Ltd.,*112 Ohio St., 543, 147 N. E., 913; *Buell, Admx.,*v. *New York Central Bd. Co.,*114 Ohio St., 40, 150 N. E., 422; *Detroit, Toledo & Ironton Rd. Co.*v. *Rohrs,*114 Ohio St., 493, 151 N. E., 714; *Penn. Rd. Co.*v. *Rusynik,*117 Ohio St., 530, 159 N. E., 826; *E. Kahn’s Sons Co.*v. *Ellswick,*122 Ohio St., 576, 172 N. E., 668; *Columbus, Delaware & Marion Electric Co.*v. *O’Day, Admx.,*123 Ohio St., 638, 176 N. E., 569; *Penn. Rd. Co.*v. *Moses,*125 Ohio St., 621, 184 N. E., 8; *New York Central Rd. Co.*v. *Stevens, Admr.,*126 Ohio St., 395, 185 N. E., 542; *Gumley, Admr.,*v. *Cowman,*129 Ohio St., 36, 193 N. E., 627; *Penn. Bd. Co.*v. *Townsend,*130 Ohio. St., 554, 200 N. E., 772; *Patton, Admx.,*v. *Penn. Rd. Co.,*136 Ohio St., 159, 24 N. E. (2d), 597.

The defendant’s motion for judgment notwithstanding the verdict should have been sustained.

Matthias and Sohngen, JJ., concur in the foregoing dissenting opinion.