#### Snow, Appellee, *v.*The Cincinnati Street Ry. Co., Appellant.

*370(No. 6786

— Decided June 16, 1947.)

*Messrs. Kuñkel <& Kunkel,*for appellee.

*Messrs. Brumleve, DeCamp & Wood,*for appellant.

Ross, J.

This case is again presented to this court upon an appeal on questions of law from a judgment of the Court of Common Pleas of 'Hamilton county. The trial resulted in a verdict in favor of the plaintiff. In two previous trials the same conclusion was reached by juries.

The defendant advances as its first assignment of error that the trial court should have directed a verdict for the defendant, (1) because the defendant was not negligent, and (2) because the plaintiff was guilty of contributory negligence.

This court has previously considered the evidence in this case under such claims of the defendant. The essential facts have been developed in the several trials with little change. An examination of the record now presented leads to the same conclusion previously expressed upon such facts that the trial court committed no error in refusing to grant motions for an instructed verdict on either ground.

The defendant advances as its second assignment of error that ‘ ‘ *the trial court erred*in refusing to grant a new trial on the gi;ound that the verdict is manifestly against the weight of the evidence.” (Emphasis added.)

*371Thirty-six jurors have considered the evidence in this case and at least 27 of them have found for the plaintiff in the three trials which have been held. In the first trial, the jury returned a verdict in favor of the plaintiff for $6,000. That was set aside by the first trial court on-the ground that such verdict was against the weight of the evidence. The second, trial resulted in a verdict in favor of the plaintiff for $25,000, which the trial court set aside on the ground that “the verdict was rendered under the influence of •passion and prejudice.”

The problem here presented is whether *now*this court may reverse the judgment of the trial court on the weight of the evidence. If it cannot, then there is no need to examine the record in the light of this second assignment of error.

There can be no question that the trial court was prohibited by the provisions of. Section 11577, General Code, from again granting a new trial on the weight of the evidence. The authorities noted hereinafter sustain that conclusion. The instant action being one ppnding on October 11, 1945, the overruling of a motion for new trial was necessary in order that the' court might consider the weight of'the evidence. *Von Gunten*v. *New Justice Coal Co.,*147 Ohio St., 511, 72 N. E. (2d), 253; *Maynard*v. *B. F. Goodrich Co.,*144 Ohio St., 22, 26, 56 N. E. (2d), 195; *State, ex rel. Curran,*v. *Brookes,*142 Ohio St., 107, 50 N. E. (2d), 995; *Jacob Laub Baking Co.*v. *Middleton,*118 Ohio St., 106, 160 N. E., 629. Such motion was filed in the instant case and was overruled. The assignment of error now considered is based upon the overruling of such motion, which could not have been granted by the? trial court, without violating the provisions of Section 11577, General Code. Such situation will be discussed later.

*372In order to reach a conclusion upon the present power of this court to consider the weight of the evidence, it is necessary to review.at some length'the decisions of the Supreme Court in which Section 11577, General Code, has been construed. That section provides :

“The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case.”

■ In *Mahoning Valley Ry. Co. v. Santoro, Admr.,*93 Ohio St., 53, 112 Ñ. E., 190, that section received extended consideration. The problem there presented was whether Section 11577, General Code, operated to prevent the Court of Appeals from granting .a new trial on the weight of- the evidence when its antecedent, the Circuit Court,-had so ordered. The syllabus of that case is:

■ “1. The Constitution of 1912, by its schedule, expressly saves ‘all laws then in force, not inconsistent therewith.’

“2. Before a statute can fall by reason of such inconsistency the repugnacy must be necessary and obvious. If by any fair course of reasoning the statute and Constitution can be reconciled, the statute must stand. (Following *Cass*v. *Dillon,*2 Ohio St., 607.)

“3. Section 11577, General Code, is by these tests reconcilable with the several amendments of the Constitution adopted in 1912,. and is applicable not only to cases pending on the first of January, 1913, but to all other cases, until said statute shall be repealed.

“4. A mere change of the name of a court does not change the court, where the clear and manifest constitutional purpose is to the contrary.”

*373That case has never been overruled, but on the contrary has been cited frequently with approval. *Matthis*v. *Youngstown Municpal Ry. Co.,*140 Ohio St., 164, 165, 42 N. E. (2d), 754; *Isaac*v. *Intercoast Sales Corp.,*132 Ohio St., 289, 298, 7 N. E. (2d), 216; *Nyiry*v. *Modern Brotherhood of America,*97 Ohio St., 343, 120 N. E., 878; *Ramm v. Babin Realty Co.,*98 Ohio St., 449, 121 N. E., 902.

On page 56 of the opinion in the *Santoro case,*the writer of the opinion distinguishes jurisdiction from procedure:

“ ‘Jurisdiction has been defined as: The power to hear and determine a cause; * * * the authority by which judicial officers take cognizance of and decide them; * * ***the power of a court or a judge to entertain an action, petition, or other proceeding; * * * a power constitutionally conferred upon a judge or magistrate to take cognizance of and determine causes according to law, and to carry his sentence into execution.’ 11 Cyc., 659 *et seq.*

“While practice or procedure is: ‘The mode of proceeding by which a legal right is enforced; that which regulates the formal steps in an action or other judicial proceeding; the course of procedure in courts; the form, manner, and order in which proceedings have been and are accustomed to be had; the form, manner, and order of conducting and carrying on suits ox-prosecutions in the courts through their various stages, according to the principles of law, and the rules laid down by the respective courts.’ 31 Cyc., 1153.”

Again, on page 57, it is stated ixx the opinion:

“Por more than seven years Section 11577, General Code, had beexx a part of the practice and procedure of our Ohio courts, and there is nothing whatsoever in the new Constitution that undertakes to withdraw generally from the General Assembly the power and *374right to legislate upon matters that are peculiarly ■and exclusively questions of practice and procedure.”

The result of the reasoning in the opinion appears in the syllabus, quoted *supra.*

In *Cleveland Ry. Co.*v. *Trendel,*101 Ohio St., 316, 128 N. E., 136, the court there had under consideration the exact question now presented and, in the syllabus, held:

“1. The right of a court of appeals to reverse the judgment of a trial court is predicated upon its finding error in the proceedings of such court.

*“2.*A trial court having granted one new trial upon the weight of the evidence is prohibited - by Section 11577, General Code,.from granting a second new trial upon the same ground.

“3. Where the trial court has granted one new trial' upon the weight of the evidence, and upon a ■second trial has overruled a motion for a new trial upon the same ground, for the reason that the court is prohibited by Section 11577, General Code, from granting the second new trial upon that ground, and ■error is prosecuted to the Court of Appeals, that court is without power to weigh the evidence and ■determine whether the verdict was in fact against the wéight of the evidence, since there could be no error in that respect by the’trial court.”

The rationale of the opinion is found on page 320, where it is stated:

“The only judgments of an inferior court known to the law in Ohio at the time of the adoption of the amendment in 1912, or now, that may be reviewed by a court of appeals, are judgments from which error is prosecuted, and the jurisdiction of the Court ■of Appeals in all such cases is invoked by the filing of a petition in error, and before modification or reversal can be had the court must find not only that *375there is error apparent upon the record but that the error found is prejudicial. *(Scovern v. State,*6 Ohio St., 288; *Ohio Life Ins. Co.*v. *Goodin et al.,*10 Ohio St., 557, and many other cases.) Hence it must follow that in the instant case before the Court of Appeals would have 'been warranted in a judgment of reversal it must have found that .the Court of Common Pleas erred in the overruling of the motion for a new trial. To have so held would have amounted to holding that the Court of Common Pleas erred in observing the provisions of Section 11577, General Code, as applicable to Common Pleas Courts. For whatever doubt there may be as to the power of the General Assembly to limit the number of judgments of reversal upon the weight of the evidence that may be entered in the same case by the Court of Appeals, there can be no question as to its power to limit the number of new trials upon the weight of the evidence that may be granted in the same case by the courts whose jurisdiction- is defined by the General Assembly and not by the Constitution.”

That case was approved by the Supreme Court in *Rolf v. Heil,*113 Ohio St., 113, 148 N. E., 398.

In connection with that decision, the absurd situation resulting from any other construction is apparent. That is developed by reference to *Werner*v. *Rowley,*129 Ohio St., 15, 193 N. E., 623. Suppose the trial court should ignore the provisions of Section 11577, General Code, and grant a second new trial on the weight of the evidence. Appeal to the Could of Appeals would follow. The appellee would assert that there was no final order in granting the motion for new trial. The appellant would claim, and very properly, an abuse of discretion by the trial court in its flagrant violation of the mandate of Section 11577, General Code. The Court ’of Appeals would *376then be about to reverse the order of the trial court for such abuse of discretion when it would be confronted by *Werner*v. *Rowley, supra,*under which authority it would be permitted to agree with the action of the trial court if it found such verdict to be against the weight of the evidence, and, in other words, sustain the order of the trial court in its flagrant flouting of Section 11577, General Code. The ■effect of *Werner*v. *Rowley, supra,*is to say that the Court of Appeals could do what would have been an abuse of discretion in the trial court. Is there any logic or reason in such a situation?

The syllabus in *Werner*v. *Rowley, supra,*reads:

“1. A legislative ’ act which attempts, directly or indirectly, to limit or' abridge the power of the Courts of Appeals to review the judgments of the Courts of Common Pleas, contravenes the provisions of Section ■6, .Article IY, of the state Constitution and is void.

“2. This right of review extends not only to errors ■of law occurring at the trial, but also to errors of fact, including an assignment of error that the verdict of a jury is against the manifest weight of the evidence..

“3. Where a trial court has granted one new tidal upon the weight of the evidence and upon a second trial is precluded, by Section 11577, General Code, from granting a second new trial against the same party upon the same grounds, the Court of Appeals has the power to examine the record and to weigh the evidence for the purpose of determining whether the verdict, on the second trial, was in fact against the weight of the evidence. *(Cleveland Ry. Co.*v. *Trendel,*101 Ohio St., 316, and *Rolf*v. *Heil,*113 Ohio St., 113, are overruled.)”

Judge Jones wrote the opinion in that case. He had dissented in the *Trendel*and *Heil cases, supra,*Ibut the personnel of the court had completely changed *377and Chief Justice Weygandt and Judges Stephenson, Be vis and Wilkin concurred with him. Judge Matthias was on the bench at that time. His name does not appear as- concurring, dissenting or not "participating. It may be presumed he recorded a “silent dissent.”

In the *Rowley case,*as indicated by /the syllabus quoted, the court was again considering the exact question • considered in the *Trendel*and *Beil*eases, *supra,*and now considered. Strange to say, Judge Jones had nothing to say about the opinion in the *Santoro case,*where Section 11577, General Code, was held to be merely a procedural statute. It is true that holding is not carried into the syllabus in the *Santoro case.*However, a reading of the opinion in the *Rowley case*indicates that the Supreme Court, as then constituted, agreed that Section 11577, General Code, was a statute affecting the *jurisdiction*of the Court of Appeals and was not merely a procedural statute. The court held that such statute, modifying the *jurisdiction*of the Court of Appeals, collided with the 1912 amendment to Section 6, Article IY of the Constitution, and must, therefore, be ignored, thus permitting the ridiculous situation heretofore outlined.

But what has been the further history of the section? It appears again for consideration in *Isaac*v. *Intercoast Sales Corp., supra,*but here a somewhat different personnel appeared in the court and the opinion was written by Judge Myers, and with him Judges Matthias, Day, Zimmerman and Williams concurred in the syllabus, and consistently Chief Justice Weygandt and Judge Jones dissented. Paragraph one of the syllabus in *Isaac*v. *Intercoast Sales Corp., supra,*is:

“In giving effect to any particular section of the Constitution, other sections relating to the same sub*378*ject*must be taken into consideration in order to harmonize, if possible, all integral parts of the same subject. In the light of Sections 5 and 16, of Article I, and Section 6, of Article IY, of the Constitution, Section 11577, General Code, remains a valid exercise of legislative power in providing by law the procedure for the exercise of appellate jurisdiction by the Courts of Appeals in respect to judgments of reversal on the weight of the evidence. (Third paragraph of the syllabus in *Mahoning Valley Ry. Co.*v. *Santoro, Admr.,*93 Ohio St., 53, approved and followed.) ”

How similar that is to the holding in the *Santoro case*from'which Judge Myers quoted with approval. Again now, Section 11577, General Code, is held to be a procedural statute and nowhere again will it he found to be considered otherwise, although the dissent of Chief Justice Weygandt will be found consistently registered in subsequent cases, always based upon the *Rowley case.*Judge Myers dismissed consideration of the *Rowley case*with the mere statement that “the facts in that case were not the same as in the instant case,” and yet the rationale of the two opinions are diametrically opposed.

In *Matthis*v. *Youngstown Municipal Ry. Co., supra,*at page 165 of a *per curiam*opinion, the court said:

“Section 11577, General Code, providing that 'The same court shall not grant more than one. new, trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of tlie evidence against the same party in the same case’ is a valid exercise of legislative power *m providing by law the procedure*for the exercise of appellate •jurisdiction by the Court of Appeals in. respect to judgments of reversal on the weight of the' evidence. *Mahoning Valley Ry. Co.*v. *Santoro, Admr.,*93 Ohio *379St., 53, 112 N. E., 190; *Nyiry*v. *Modern Brotherhood of America,*97 Ohio St., 343, 120 N. E., 878; *Isaac*v. *Intercoast Sales Corp.,*132 Ohio St., 289, 7 N. E. (2d), 216.” (Emphasis added.)

Note in the first place that that was a case where the Court of Appeals *twice*reversed on the weight of the evidence (evidently considering the *Rowley case*a permissive authority) and further note that the Supreme Court found that Section 11577, General Code, in prohibiting such action, was a *procedural*measure; and further note that the *Santoro case,, supra,*is quoted as an authority as well as the *Inter-coast Sales Corp. case, supra.*

Now if Section 11577, General Code, is a statute modifying the jurisdiction of the Court of Appeals when it prevents the Court of Appeals from finding the trial court committed error in not doing what it could not legally do under the statute — why does it become merely a procedural statute when it prevents-the Court, of Appeals from reversing twice on the weight of the evidence?

Is it jurisdictional when the Court of Appeals is-prevented from creating an absurd situation, noted heretofore, but merely procedural when the Court of Appeals- itself is limited in the exercise of a jurisdiction entirely confined to that court, and without any reference to what occurred in the trial court?' The court was not required to reverse the judgment in the *Rowley case*because the exact situation was-not again presented, but certainly all rationale of the *Rowley case*was inferentially repudiated. Again, note the personnel of the court in that *per curiam*opinion; Judges Turner, Williams, Matthias, Hart, Zimmerman and Bettman, concurring and Chief Justice Weygandt, dissenting'upon authority of the *Rowley case.*

*380In view of those later decisions, this court can no longer consider itself bound by the decision in the *Roivley case*in spite of the fact that the exact question here presented has not been directly considered by the Supreme Court.

The *Rowley case*was predicated upon the 1912 constitutional amendment of Section 6, Article IV. Section 11577, General Code, was considered to be in conflict with that amendment. Today the 1944 amendment of that constitutional section is in effect. It is true the jurisdiction of tlje Court of Appeals remains *in statu quo*until the Legislature modifies it by appropriate legislation. *Youngstown Municipal Ry. Co.*v. *City of Youngstown,*147 Ohio St., 221, 70 N. E. (2d), 649; *Schottenstein*v. *Newburger,*148 Ohio St., 71, 72 N. E. (2d), 903. Is the Legislature required to act in order to effect ■ the application of Section 11577, General Code? That section has survived two constitutional amendments of the Article in question without change, and no change or modification of that section is now required to cause it to apply to the instant question. It was *judicial construction*of that section and the 1912 constitutional amendment which produced a completely illogical situation, a judicial construction which evidently does not now have the support of the Supreme Court. The Legislature long ago, before the 1912 amendment of Section 6, Article IV, inferentially forbade this court to do what the trial court could not legally do. There is now no barrier to the *effect*of that legislative mandate. We are not presented here with a statute which after the 1912 amendment- to the Constitution attempted to modify that jurisdiction, and which would require re-enactment to make it now effective under the 1944 amendment of that constitutional provision.

*381Section *11577,*General Code, requires no re-enactment. It is still as effective as it ever was, and although the 1912 amendment of the Constitution still fixes the jurisdiction of the Court of Appeals, the inferential effect of Section 11577, General Code, can no longer be restrained in face of the 1944 amendment, giving the Legislature power to modify the jurisdiction of the Court of Appeals, since any restraint must find its basis merely in a fallacious judicial construction of the statute and the 1912 amendment.

One other consideration, previously noted, requires comment, although not controlling in reaching a conclusion upon the question presented. For many years the Court of Appeals has been prohibited from considering the weight of the evidence in the absence of a motion for a new trial, based upon that assignment of error. The authorities supporting that rule have been previously noted. If the Court of Appeals can, independently of any action by the trial court, consider the weight of the evidence, what becomes of the rule requiring the filing of a motion for a new trial in order that the Court of Appeals may consider the weight of the evidence? Is the appellant required to file a motion which he knows and the trial court knowfe and the appellate court knows is a wholly futile action? Certainly, all logic and reason are not to be discarded when matters of procedure are involved.*

It is true that under practice applicable, to cases pending *after*October 11, 1945, no motion for new trial will be necessary in order that” the Court of Appeals may consider the weight of the evidence. What effect this may have upon cases pending after October 11, 1945, need not here be considered as not involved.

The foregoing requires the conclusion that the weight of the evidence is not before this court, for *382the reason that no new trial could be granted by this court, upon the ground the verdict was against the manifest weight of the evidence, the trial court having once before so ordered.

As a third claim of error, the defendant asserts that the plaintiff’s counsel were guilty of misconduct requiring a new trial. It does not appear that such claim is sustained by the record. ,

The fourth assignment of error deals with the refusal of the trial court to give a special charge requested by defendant. That charge is:

“The court charges you that the traffic lights at the intersection of Maple avenue and Montgomery avenue regulated traffic and pedestrians who were crossing said intersection and did not regulate traffic or pedestrians who were traveling on Montgomery road at any other point; and, if you find that the plaintiff was crossing Montgomery avenue at a point opposite the ¡center doors of the Norwood Theater, then it is immaterial whether the street car crossed the intersection on the green, amber or red light.”

No error prejudicial to defendant appears in the refusal of the trial court to give that special instruction.

As a fifth assignment of error the defendant complains of a statement of the trial court in its general charge. The court instructed the jury in part:

'“The evidence which has been submitted suggests the possibility of the existence of contributory negligence and for that reason the court is enjoined as á matter of law to speak on that subject.”

If there was-any error in that charge it was to the prejudice of the plaintiff rather than the defendant, in that there is an implication that in the *opinion*of the trial court there is a suggestion of the possibility of contributory negligence.' Certainly, the jury, from *383that statement alone, might have gained the impression that the trial court considered that the evidence submitted justified a finding of contributory negligence.

For these reasons, the judgment is affirmed.

*Judgment affirmed.*

Matthews, P. J', Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.