Guernsey, J.
As sometimes occurs when a multiple-member court divides in its decision, an opinion first drafted, proposed as the majority opinion, becomes a dissenting opinion and the majority opinion is thereafter drafted. That being the case
here, for the purpose of brevity we refer to the dissenting opinion for the general facts of the case and will limit the statement of facts herein to those additional facts we deem necessary to a full consideration of the respective errors assigned by plaintiff in this appeal on questions of law.
As we have carefully considered plaintiff’s first, fifth and sixth assignments of error and subdivision (B) of his third assignment of error and find them completely without merit, we will confine our opinion to a disposition of plaintiff’s remaining assignments of error.
II. Second Assignment of Error:
“Refusal of the trial court to give plaintiff’s special requests to charge the jury before argument.”
It is undisputed in evidence that plaintiff, at the time defendant was attempting to pass, “turned my tractor to the right and hit the soft shoulder. ’ ’ Plaintiff claims that under the circumstances he was acting in a sudden emergency and submitted two instructions relating thereto to the court, requesting that one of the two should be charged before argument. This the court refused to do, nor did the court charge in its general charge as to sudden emergency.
We are able to dispose of this assignment of error without examining into the correctness or incorrectness of the charges submitted to the court.
Were it not for the fact that plaintiff turned his vehicle onto the soft berm, for all that appears in the record, plaintiff would not have collided with the culvert and incurred any injuries from such collision. His conduct in turning onto the soft berm differed from the usual manner of driving upon a highway and such conduct may or may not have constituted negligent conduct contributing to cause the ensuing collision. Such conduct raised the issue of contributory negligence to be determined by the jury. And, in determining such issue the jury should consider whether or not the plaintiff exercised due care under the circumstances then existing. One of these circumstances which the jury could and should have considered and determined was whether a situation of sudden emergency confronted the plaintiff at the time he turned his vehicle onto the berm.
Contributory negligence was in issue and the refusal to give a correct instruction as to sudden emergency would relate not to the issue of defendant’s negligence but would relate instead and constitute error pertaining only to the issue of contributory negligence. However, under the two-issue rule, the verdict of the jury for the defendant being general and not being tested by interrogatories, the error, if any, in submitting the issue of plaintiff’s contributory negligence would not constitute prejudicial error so long as there was no error in the submission of the issue of defendant’s negligence. As will hereinafter appear, there being no error in the submission of the issue of negligence, the error, if any, as to the issue of contributory negligence in not charging as to sudden emergency cannot be considered prejudicial to the plaintiff, and this assignment of error is without merit.
III. Third Assignment of Error:
“ (A) By charging the jury on the defense of contributory negligence there being no evidence upon which the jury could base a finding of contributory negligence.”
We refer to our disposition of plaintiff’s second assignment of error which completely disposes of this contention.
. “(C) The court erred in charging the jury that the plaintiff had the burden of sustaining all of the allegations of his petition by a preponderance of the evidence.”
Examination of the charge reveals that the court did not instruct the jury that the plaintiff had the burden of sustaining “all of the allegations of his petition,” but charged the jury that plaintiff had the burden of sustaining “all of the
material
allegations” (emphasis added) of the petition, which statement was correct. Nor can plaintiff predicate error on the omission of the court to define “material allegation,” for plaintiff did not make any request, denied by the court, that the court so charge.
IV. Fourth Assignment of Error:
“Failure of the court to give a direct answer to the jury’s question regarding necessity for proof of contact between vehicles. ’ ’
It should be emphasized that the record shows the only exception made by counsel for plaintiff relating to the additional charge given to the jury following the question of the jury as to
the necessity of proof of “direct contact” was made
after
the jury had retired for further deliberation, and is in the following words:
“We would like to enter a general exception to the jury having been called back in open court and instructions having been given and additional law having been given to the jury by the court.
“We further feel that the court should have instructed the jury that direct contact, under the circumstances of this accident, need not be proven.”
The court did not rule on this exception, nor did it further charge the jury.
Under the facts and circumstances of this case there was no proof of negligence by defendant as a matter of law. The evidence of negligence being conflicting, it was solely a question for the jury to determine. The jury could rightly conclude that defendant failed to exercise due care in the manner in which she drove even though they should also determine that there was no direct contact. Or, the jury could have rightly concluded that the defendant would fail to exercise due care in the manner in which she drove only if her vehicle also came in direct contact with plaintiff’s vehicle. Under these circumstances the court could not have categorically answered the jury’s question either “yes” or “no” without thereby invading the province of the jury and committing prejudicial error. It would have been at least as prejudicially erroneous for the court to have charged, as plaintiff’s counsel suggested should have been done, that ‘ ‘ direct contact, under the circumstances of, this accident, need not be proven.”
The court’s additional charge to the jury was primarily a repetition of that part of its general charge pertaining to pertinent statutory and common-law standards of care and a reiteration that “whether or not either one or both of these drivers was negligent in this respect is a question for the jury to determine, taking into consideration all of the facts and circumstances which the evidence shows then and there existed.”
The additional charge was not only correct but was responsive to the question posed by the jury and there is nothing in the record on which to base a conclusion that it was, in any
sense, confusing or misleading. There was consequently no error of commission requiring a reversal.
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Guernsey, J.
As sometimes occurs when a multiple-member court divides in its decision, an opinion first drafted, proposed as the majority opinion, becomes a dissenting opinion and the majority opinion is thereafter drafted. That being the case
here, for the purpose of brevity we refer to the dissenting opinion for the general facts of the case and will limit the statement of facts herein to those additional facts we deem necessary to a full consideration of the respective errors assigned by plaintiff in this appeal on questions of law.
As we have carefully considered plaintiff’s first, fifth and sixth assignments of error and subdivision (B) of his third assignment of error and find them completely without merit, we will confine our opinion to a disposition of plaintiff’s remaining assignments of error.
II. Second Assignment of Error:
“Refusal of the trial court to give plaintiff’s special requests to charge the jury before argument.”
It is undisputed in evidence that plaintiff, at the time defendant was attempting to pass, “turned my tractor to the right and hit the soft shoulder. ’ ’ Plaintiff claims that under the circumstances he was acting in a sudden emergency and submitted two instructions relating thereto to the court, requesting that one of the two should be charged before argument. This the court refused to do, nor did the court charge in its general charge as to sudden emergency.
We are able to dispose of this assignment of error without examining into the correctness or incorrectness of the charges submitted to the court.
Were it not for the fact that plaintiff turned his vehicle onto the soft berm, for all that appears in the record, plaintiff would not have collided with the culvert and incurred any injuries from such collision. His conduct in turning onto the soft berm differed from the usual manner of driving upon a highway and such conduct may or may not have constituted negligent conduct contributing to cause the ensuing collision. Such conduct raised the issue of contributory negligence to be determined by the jury. And, in determining such issue the jury should consider whether or not the plaintiff exercised due care under the circumstances then existing. One of these circumstances which the jury could and should have considered and determined was whether a situation of sudden emergency confronted the plaintiff at the time he turned his vehicle onto the berm.
Contributory negligence was in issue and the refusal to give a correct instruction as to sudden emergency would relate not to the issue of defendant’s negligence but would relate instead and constitute error pertaining only to the issue of contributory negligence. However, under the two-issue rule, the verdict of the jury for the defendant being general and not being tested by interrogatories, the error, if any, in submitting the issue of plaintiff’s contributory negligence would not constitute prejudicial error so long as there was no error in the submission of the issue of defendant’s negligence. As will hereinafter appear, there being no error in the submission of the issue of negligence, the error, if any, as to the issue of contributory negligence in not charging as to sudden emergency cannot be considered prejudicial to the plaintiff, and this assignment of error is without merit.
III. Third Assignment of Error:
“ (A) By charging the jury on the defense of contributory negligence there being no evidence upon which the jury could base a finding of contributory negligence.”
We refer to our disposition of plaintiff’s second assignment of error which completely disposes of this contention.
. “(C) The court erred in charging the jury that the plaintiff had the burden of sustaining all of the allegations of his petition by a preponderance of the evidence.”
Examination of the charge reveals that the court did not instruct the jury that the plaintiff had the burden of sustaining “all of the allegations of his petition,” but charged the jury that plaintiff had the burden of sustaining “all of the
material
allegations” (emphasis added) of the petition, which statement was correct. Nor can plaintiff predicate error on the omission of the court to define “material allegation,” for plaintiff did not make any request, denied by the court, that the court so charge.
IV. Fourth Assignment of Error:
“Failure of the court to give a direct answer to the jury’s question regarding necessity for proof of contact between vehicles. ’ ’
It should be emphasized that the record shows the only exception made by counsel for plaintiff relating to the additional charge given to the jury following the question of the jury as to
the necessity of proof of “direct contact” was made
after
the jury had retired for further deliberation, and is in the following words:
“We would like to enter a general exception to the jury having been called back in open court and instructions having been given and additional law having been given to the jury by the court.
“We further feel that the court should have instructed the jury that direct contact, under the circumstances of this accident, need not be proven.”
The court did not rule on this exception, nor did it further charge the jury.
Under the facts and circumstances of this case there was no proof of negligence by defendant as a matter of law. The evidence of negligence being conflicting, it was solely a question for the jury to determine. The jury could rightly conclude that defendant failed to exercise due care in the manner in which she drove even though they should also determine that there was no direct contact. Or, the jury could have rightly concluded that the defendant would fail to exercise due care in the manner in which she drove only if her vehicle also came in direct contact with plaintiff’s vehicle. Under these circumstances the court could not have categorically answered the jury’s question either “yes” or “no” without thereby invading the province of the jury and committing prejudicial error. It would have been at least as prejudicially erroneous for the court to have charged, as plaintiff’s counsel suggested should have been done, that ‘ ‘ direct contact, under the circumstances of, this accident, need not be proven.”
The court’s additional charge to the jury was primarily a repetition of that part of its general charge pertaining to pertinent statutory and common-law standards of care and a reiteration that “whether or not either one or both of these drivers was negligent in this respect is a question for the jury to determine, taking into consideration all of the facts and circumstances which the evidence shows then and there existed.”
The additional charge was not only correct but was responsive to the question posed by the jury and there is nothing in the record on which to base a conclusion that it was, in any
sense, confusing or misleading. There was consequently no error of commission requiring a reversal.
As to the contention of plaintiff’s counsel that if same were an omission “he did request the court to charge further,” let us examine the law on that subject and the words of counsel.
The law as to omission to charge in a general charge is equally applicable to the omission to charge, if any, in answer to a question of the jury to the court after deliberations are under way.
It is stated in the case of
Rhoades
v.
City of Cleveland,
157 Ohio St., 107, 105 N. E. (2d), 2:
“As a general rule, in the absence of statutory provisions to the contrary, a party, represented by counsel, may not ordinarily avail himself of an error which was not called to the attention of the trial judge and which could and might have been corrected by the trial judge if it had been called to his attention.
Adams
v.
State,
25 Ohio St., 584.”
A leading case pertaining to the omission to charge in a civil action is that of
Columbus Ry. Co.
v.
Ritter,
67 Ohio St., 53, 65 N. E., 613, decided by the Supreme Court in 1902, wherein the court held:
“1. Where the charge of the court is free from error prejudicial to the party excepting thereto, but fails to cover all the questions involved in the case, such failure is not a ground for reversal,
unless it ivas called to the attention of the court, and further instructions requested and refused,
provided the jury is not misled by the charge as given.” (Emphasis added.)
“2. A general exception to the charge of the court as now permitted by Section 5298, Revised Statutes, is effectual only as to errors of law existing in the charge as given, and does not bring in review on error, an omission or failure to give further proper instructions.”
The genera] rule mentioned in the case of
Rhoades
v.
City of Cleveland, supra,
and the exception thereto, together with the limitations on that exception established by the ease of
Columbus Ry. Co.
v.
Ritter, supra,
have, since 1936, been incorporated in what is now Section 2321.03 of the Revised Code, namely:
“An exception is not necessary, at any stage or step of the
case or matter, to lay a foundation for review
whenever a matter has been called to the attention of the court
by objection, motion, or otherwise
and the court has ruled thereon.
Error can be predicated upon erroneous statements contained in the charge, not induced by the complaining party, without exception being taken to the charge.” (Emphasis added.)
In 1946 the Supreme Court in the case of
Karr, Admr.,
v.
Sixt,
146 Ohio St., 527, 67 N. E. (2d), 331, again held:
“9. If a charge is not confusing and misleading and is good as far as it goes, the omission of some matters which might have been included is not fatal,
unless the omission was called to the attention of the court and an instruction
requested.” (Emphasis added.)
As is pointed out in the dissenting opinion herein the Supreme Court in an opinion written by Judge Taft in the case of
State
v.
Tudor,
154 Ohio St., 249, 95 N. E. (2d), 385, noted the application of this rule to criminal cases.
Thereafter, in 1952, in the case of
Rhoades
v.
City of Cleveland, supra,
the Supreme Court again held:
“Where claimed errors in the charge of the court are errors of omission and not errors of commission,
unless counsel has requested the court to supply the omissions,
such errors of omission will not ordinarily justify a reversal.” (Emphasis added.)
In the opinion in that case, written by Judge Taft and concurred in by four other members of the court, the case of
Columbus Ry. Co.
v.
Ritter, supra,
is reviewed and it is concluded that the law established by paragraph 2 of the syllabus of the case of
Columbus Ry. Co.
v.
Ritter, supra,
is still applicable, and that even though the Court of Appeals did determine that the trial court failed to separate and define the issues of fact and failed to charge the law upon such issues, the judgment of the trial court could not be reversed in the absence of a request to the trial court to supply the omissions. Judge Taft further was of the opinion that the provisions of the statute, herein-before quoted, fortify this conclusion.
We note that the statute includes the phrase, “and the court
has ruled
thereon,” and that the first paragraph of
Co
lumbus Ry. Co.
v.
Ritter, supra,
includes the phrase, “and further instructions requested
and
refused.”
Since an omission is not, in itself, error, and does not become error if a request to supply the omission has been made and granted, but becomes error only when a request to supply the omission has been made and refused, although not expressed in each of the cases cited, it is of necessity implied, that before there can be error based on an omission to charge there must be a ruling of the court, or conduct equivalent to a ruling, refusing the request to supply the omission.
It is obvious from the record that the trial court did not consider the statement of the plaintiff’s counsel made after the jury had again retired as a request to charge, and in no event did he rule thereon or refuse same as if it were a request to charge. Nor will the majority of this court torture the plain and explicit words of plaintiff’s counsel and thereby interpret such words as a request to charge. Nor is it conceivable that a statement, made in the same breath as the statement excepting to any additional instructions to the jury, was intended as a request for additional instructions to the jury.
We conclude that even were we to concede that the jury could correctly have been additionally instructed that “direct contact, under the circumstances of this accident, need not be proven,” which concession we do not make, the failure to so instruct was an omission on which, under the circumstances of this case, the plaintiff could not predicate reversible error.
There being no error prejudicial to plaintiff in the particulars assigned and argued, the judgment for defendant is hereby affirmed.
Judgment affirmed.
Middleton, P. J., concurs.