#### Buckeye Stages, Inc., *v.*Bowers.

(No. 25113

Decided May 8, 1935.)

*Messrs. Amerman & Mills,*for plaintiff in error.

*Mr. Adolph TJnger,*for defendant in error.

Matthias, J.

There are but two grounds of error specified which challenge the consideration of this *413court. The first is that a verdict should have been directed for the defendant by the trial judge for the reason that the undisputed evidence shows that the plaintiff violated the following provisions of an ordinance of the city of Massillon: “That pedestrians shall cross the street at right angles and at street and alley intersections only. They cannot cross diagonally, but shall walk around the center of the line of traffic and cross only one street at a time. ’ ’ This claimed error calls for a consideration of the facts, particularly as to the plaintiff’s conduct as disclosed by the record. For the purpose of this question, the evidence, of course, must be considered in its aspect most favorable to the plaintiff. This ordinance is of very doubtful application to the plaintiff’s act or to the situation disclosed by the evidence. That portion of the street was in constant use as a bus terminal and street car and interurban stop. The plaintiff’s objective was the safety zone, from which she desired to enter an approaching interurban car. There is evidence that to carry out her purpose — which was to reach the safety zone — it became necessary for the plaintiff to pass over the intervening portion of the street at a place other than the cross-walk, for the reason that the bus of the defendant company projected over the cross-walk. Obviously, .the defendant company is in no position to complain even if plaintiff did not pursue the course directed by ordinance, if, by its own action, that way had been closed. These facts were in controversy. Hence the refusal of the trial court to direct a verdict was not erroneous. On the contrary, in view of such evidence, it would have been error to direct a verdict against the plaintiff upon the ground stated.

The second claim of error is predicated upon a portion of the general charge of the court upon the doctrine of negligence *per se.*The Court of Appeals found that there was no error in the charge, and it was upon *414that finding that it announced its disagreement with the Court of Appeals of the sixth district. The instructions challenged are as follows: “There is another sort of negligence and that is negligence in the violation of a statute, or the violation of a statute, and if the statute is violated that is negligence *per se,*that means in and of itself. The statute applicable in this case is first Section 6310-21 which provides: ‘Before backing, drivers of vehicles shall give ample warning, and while backing vigilance shall be exercised not to injure those behind.’ That means that they shall give such warning as a man of ordinary care and prudence would think necessary and use vigilance of the same sort. Then it is claimed that there is a violation in this case of another statute, Section 12603-1. It provides that it shall be unlawful for anyone to operate a motor vehicle upon the streets or highways of this State without due regard for the safety arid rights of pedestrians or other persons lawfully using the same.”

It is to be observed that there was but one negligent act charged in the petition, and that was failure to give warning before backing the vehicle in question. Such was the only act complained of; it was upon that act alone that the charge of negligent operation was based. The instructions disclose that the attention of the jury was directed to the one and only act which it was claimed constituted negligence, causing the injury complained of, and it is not complained that the court did not properly charge the jury with reference to the requirement of Section 6310-21, General Code, and the effect of a violation of the provisions of that statute. This is a penal statute enacted for the protection of the public. It imposes an absolute duty and makes a specific requirement, the violation of which constitutes negligence *per se.*After instructing the jury specifically regarding that statute, the court made the observation with reference to the claim of violation of Section 12603-1, General Code, above recited, but in fact *415gave no instruction covering it or applying it to this case; hence, from any point of view, there was no prejudicial error in the instruction given.

It was urged that the court erred'also in approving a verdict for an amount grossly in excess of that which would reasonably compensate plaintiff for the injuries proven, and that the verdict returned was the result of passion and prejudice. This question was examined not only by the trial court, but by the Court of Appeals, neither of which suggested a remittitur or found that the verdict was against the weight of the evidence, but affirmatively found the contrary. This court does not review that finding. For the reasons assigned, it is our conclusion that the judgment should be in all respects affirmed.

*Judgment affirmed.*

Weygandt, C. J., Stephenson, J ones, Day and Zimmerman, JJ., concur.

Williams, J.,

dissenting. The majority' opinion states that a violation of Section 6310-21, General Code, constitutes negligence *per se.*In other words it is asserted that the classification recognized in the decisions of this state is not applicable to this section. To be specific, such penal statutes are divided into two general classes: First, those which make penal the doing or refraining from doing a definite act, and, second, those which make penal the failure to observe a general rule of conduct. A violation of the former class of statutes constitutes negligence *per se,*and a violation of the latter negligence in the sense of want of ordinary care. It would seem that a failure to recognize this distinction would be bound to lead to confusion.

The pronouncement of law which clarified this distinction was first made in *Heidle*v. *Baldwin,*118 Ohio St., 375, 161 N. E., 44, 58 A. L. R., 1186, and was in *416that case carried into the syllabus, which, under the rule in this jurisdiction, shows it to have had the unstinted approval of the judges who concurred generally. Further support was accorded to it in later opinions. *Times Square Garage Co.*v. *Spencer,*121 Ohio St., 77, 79, 166 N. E., 901; *George Ast Candy Co.*v. *Kling,*121 Ohio St., 362, 169 N. E., 292; *Jones*v. *Harman,*122 Ohio St., 420, 422, 172 N. E., 151. It is true that *Heidle*v. *Baldwin*and *George Ast Candy Co.*v. *Kling, supra,*were overruled in *Morris*v. *Bloomgren,*127 Ohio St., 147, 187 N. E., 2, 89 A. L. R., 831, but there was no express repudiation of the particular rule under discussion.

Although the distinction referred to was not made clear until the declaration in *Heidle*v. *Baldwin, supra,*it arose in a sense in *State*v. *Schaeffer,*96 Ohio St., 215, 117 N. E., 220, L. R. A., 1918B, 945, Ann. Cas., 1918E, 1137. The rule of negligence *per se*is explained in the case of *Schell*v. *DuBois, Admr.,*94 Ohio St., 93, 113 N. E., 664, L. R. A., 1917A, 710. In that case the defendant was charged with negligence in violating Section 12604, General Code, which made it unlawful to operate an automobile at a greater speed than eight miles an hour in the business and closely built-up portions of a municipality and in violating an ordinance of the municipality which made it unlawful to drive an automobile past a standing street car which is receiving or discharging passengers. It will be observed that both the statute and the ordinance forbade the doing of a definite act. When, at a later date, *State*v. *Schaeffer, supra,*came before the court, the court had under consideration Section 12603, General Code, which made it unlawful to operate a motor vehicle “on the public roads or highways at a speed greater than is reasonable or proper * * * or so as to endanger the property, life or limb of any person”. While no reference is made in the opinion to negligence *per se,*the ease does lay down the prin*417ciple that the statute required only the exercise of ordinary care. If we read *Schell*v. *DuBois, Admr.,*and *State*v. *Schaeffer*together we have the foundation for the rule as to negligence *per se*as expounded in *Heidle*v. *Baldwin.*In the case of *Skinner*v. *Pennsylvania Rd. Co., 127*Ohio St., 69, 186 N. E., 722, the problem is discussed to some extent. This case, however, came under consideration in *Souder*v. *Hassenfeldt, Admx.,*48 Ohio App., 377, 194 *N.*E., 47. As the opinion in the latter case fully expresses the writer’s views in this connection, to pursue the inquiry further here would be a work of supererogation. Lastly,’ it is to be borne in mind that there are many statutes penal in nature and regulatory of conduct in the use of public roads and highways that impose no duty but ordinary care. *State*v. *Schaeffer, supra,*affords perhaps the best illustration. For a trial judge to read to the jury such a statute and merely state that violation thereof constitutes negligence in and of itself means nothing without an explanation of the rule as to ordinary care in connection therewith and as applicable thereto. Thus would the jury be given a task incapable of intelligent performance.

The charge in the instant case involved Section 6310-21, General Code, which provides: “Before backing, drivers of vehicles shall give ample warning, and while backing vigilance shall be exercised not to injure those behind.” This section may be violated in three different ways: (1) By failing to give any warning before backing, (2) by failing to make the warning given before backing, ample, and (3) by failing, while backing, to exercise vigilance not to injure those behind. A failure to give any warning at all would constitute negligence *per se,*but ample warning would be such warning as ordinary care requires. As to the use of vigilance in backing, the exercise of ordinary care in making the backward movement would satisfy the requirements of the statute.

*418With reference to Section 12603-1, General Code, the trial judge said in the charge: “It [Section 12603-1] provides that it shall be unlawful for anyone to operate a motor vehicle upon the streets or highways of this State without due regard for the safety and rights of pedestrians or other persons lawfully using the same.” Due regard for the safety and rights of others would require only the exercise of ordinary care.

In the judgment of the writer, the charge was misleading and prejudicial in that it confused the law of negligence in failing to distinguish properly between negligence *per se*and negligence in the sense of want of ordinary care.