#### Palmer, Appellant, *v.*Roof et al., Appellees.

(No. 1964

Decided April 1, 1948.)

*Messrs. Pickrel, Schaeffer & Ebeling,*for appellant.

*Mr. Charles R. Boesch,*for appellees.

Wiseman, P. J.

TMs is an appeal on questions of law from the Court of Common Pleas of Montgomery county. The action grew out of a collision between the plaintiff’s automobile and a truck owned and driven by the defendant, Roy J. Roof, on route 48, commonly known as the Dayton and Covington pike, at a place approximately four miles north of Dayton.

The plaintiff alleged that Roof was negligent in the following respects: Failing to keep a lookout ahead, failing to yield the right of way to plaintiff, crossing onto plaintiff’s side of the road, and failing to have the truck under control.

*121Roof denied any negligence on his part, and in his cross-petition alleged that the damage was caused by the negligence of the plaintiff in the following respects: Operating his automobile at an excessive speed in violation of the statutes of Ohio, failing to keep his automobile under proper control and upon the right side of the center line of the highway, unlawfully driving his automobile to the left of the center line of the highway in violation of the laws of Ohio, unlawfully failing to give to the vehicle passing in the opposite direction one-half of the main travelled portion of the roadway in violation of the laws of Ohio, and carelessly, negligently and unlawfully colliding with Roof’s truck while he was operating the same on his right side of the highway.

The case was tried to the jury resulting in a verdict for Roof, on his cross-petition against the plaintiff, in the amount of $2,500.00, and a verdict in favor of the Illinois National Casualty Company, which had been made a party defendant, having been subrogated to the rights of Roof, on its cross-petition against plaintiff, in the amount of *$482.61.

On motion for new trial, the court being of the opinion that the damages assessed in favor of Roof were excessive ordered a remittitur in the amount of $1,000, with the consent of Roof, and thereupon overruled the motion for new trial and entered judgment accordingly.

The plaintiff has assigned nine separate grounds of error, eight of which relate to erroneous statements claimed to have been made by the court in its general1 charge. The court will not take up each separate ground of error but will discuss generally the separate-assignments of error relating to the charge.

The trial court in the beginning of its general charge-read the pleadings to the jury and then summarized the issues made by the pleadings. Although the issues-*122-of fact may have been more clearly stated, the court .did charge on all the issues in the case. After considering the charge in its entirety we do not believe the charge in this regard was misleading to the jury, and-the failure to more clearly define the issues was not prejudicial.

The plaintiff claims that the trial judge placed the burden on him to prove that he was free from negligence. At several places in the charge, language was used which seems to place that burden upon the plaintiff. The court charged as follows:

“In other words, each must establish that burden by preponderance of the evidence in order to recover ¡damages from the other, and each must show, in order to recover, that he was free of any negligence proximately causing the collision and resulting damages.”

That charge was erroneous with respect to both the ¡plaintiff and the defendants.

The court further charged:

“To entitle the plaintiff to recover in this action he must prove by preponderance of the evidence that he was damaged in the manner set forth in his petition ¡through the negligence of defendant in the respects ■set forth, some one or all of them, and he must further ■prove that he was, himself, in the exercise of ordinary •care.”

The pleadings did not raise an issue of contributory negligence. However, under the evidence, the court •could have properly charged on contributory negligence but did not do so. On an issue of contributory ■negligence it would have been proper to charge the jury that, where the plaintiff’s own evidence raises a presumption or inference of contributory negligence, the burden would rest on the plaintiff to remove that ■presumption or inference. Contributory negligence is an affirmative defense, and the burden of proving It rests on defendant. At no time did the burden of *123proof rest upon the plaintiff to prove that he was free of negligence. However, the portion of the charge above quoted did not relate to an issue of contributory negligence and was misleading to the jury as it imposed an undue burden upon the plaintiff to prove that he was free from negligence. To so charge the jury under the issues made constituted reversible error.

The court in its charge quoted Section 6307-21, General Code, which contains provisions relative to speed of motor vehicles and also embodies the “assured clear distance ahead” rule. The court then charged on the question of speed but made no application of the “assured-clear-distance-ahead” rule. We are of the opinion that the mere reading of the quoted portion of the statute did not constitute reversible error, although it had no application to the facts in this case. See *Thompson, Admx.,*v. *Kerr,*39 Ohio Law Abs., 113, 127, 51 N. E. (2d), 742.

After quoting Section 6307-21, General Code, the court immediately quoted Section 6307-26, General Code, which provides that operators of vehicles proceeding in opposite directions shall pass each other to the right so as to give each other one-half of the main travelled portion of the roadway. The court then stated, “the violation of a statute passed for the protection of the public1 is negligence per se, ’ ’ and immediately charged, “No particular rate of speed is conclusive of the violation of the statute, and no rate of speed, is, therefore, an act of negligence per se.” . That charge was followed by the following statement:

“It is the claim of the defendant that the provisions of the General Code heretofore given you were violated by the plaintiff and that such violation was proximate cause of the damage.

“I say to you in this respect, members of the jury, *124"that if plaintiff violated the provisions of the General Code as read to you, then such violation on the part of plaintiff would be negligence in itself, etc.”

Such charge was not limited to Section 6307-26, but -embraced also Section 6307-21. From that portion of the charge the jury would be led to believe that the 'violation of either one of those sections constitutes negligence per se. The violation of Section 6307-21 is only prima facie evidence of negligence. The court made a correct and an incorrect statement relative to the application of that section. Where the court states •a correct rule and also states an incorrect rule with reference to the same subject matter, no presumption •arises that the correct rule was applied by the jury, and the error in giving the incorrect rule is prejudicial. *Westropp*v. *E. W. Scripps Co.,*148 Ohio St., 365, 74 N. E. (2d), 340; *Bosjnak v. Superior Sheet Steel Co.,*145 Ohio St., 538, 62 N. E. (2d), 305; *Seward*v. *Schmidt,*30 Ohio Law Abs., 684; 2 Ohio Jurisprudence, 938, Section 770 (numerous cases cited).

There are other claimed errors which, after a consideration of the charge as a whole, we find were not misleading and were not prejudicial.

For his ninth assignment of error, plaintiff contends that the verdict is against the manifest weight of the -evidence. There was evidence of a substantial character offered in support of the allegations of negligence set forth in the defendants’ cross-petitions. After a careful consideration of all of the evidence in this case, the court cannot say that the verdict was against the manifest weight of the evidence. However, because of the erroneous and misleading statements made in the charge to the jury, the judgment is reversed and the case remanded for new trial.

*Judgment reversed.*

Miller and Hornbeck, JJ., concur.