¶1 dissenting. The plaintiff’s fourth assignment of error is as follows:
¶2 “Failure of the court to give a direct answer to the jury’s question regarding necessity for proof of contact between vehicles.”
¶3 Plaintiff, in his petition, alleges that he was operating a 1950 *327 tractor and a 1951 Trailmobile trailer in a northerly direction on route No. 66, north of Defiance, in the northerly bound or eastwardly lane of the highway and to the right of the center thereof, and that the defendant, Colletta Sheets, was operating a 1952 Chevrolet sedan, also in a northerly direction along said highway, to the rear of and overtaking the tractor-trailer combination being operated by the plaintiff', and that, in overtaking and passing, the defendant drove the Chevrolet automobile she was operating off the paved' portion of the highway on to the berm at the left or west side of the highway; and that, in attempting to get back on to the paved portion of the highway, she lost control of said automobile, causing it to skid and to come into collision with the left front fender of the tractor being operated by the plaintiff.
¶4 The question of whether there was a direct contact between the two vehicles involved was one which occupied a prominent place in the trial. The only direct evidence in the record concerning contact between the vehicles was the testimony of the plaintiff, as follows:
¶5 ‘ ‘ Q. At any time, Mr. Domagala, during the process of this passing by Mrs. Sheets, did her car come in contact with your truck? A. I heard it tong just as she — I heard something hit, a connection, and that is when I turned my wheel to the right and hit the soft shoulder.
¶6 “Q. You didn’t see the hitting? A. Couldn’t see it hit.
¶7 “Q. What part of this truck did she hit? A. I would say the left front of the tractor.”
¶8 “A. I just heard a knock and if I proceeded I would probably run over the top of her. To avoid from striking her car more I turned to the right.”
¶9 “A. Then the next thing I seen she was right alongside me and fighting her car so I just pulled my trailer brake down and let up on it and she come right out in front of me and the front end come on the road and the back end jumped right in front of me and at that time I heard a tick and turned my tractor to the right and hit the soft shoulder.”
¶10 In a statement given to the Highway Patrol, which was introduced in evidence, the defendant stated:
¶11*328 “The berm was very soft and when my car came back on the road, it came back suddenly. I was completely past the truck when I came back on the road, but was rather close to truck.”
¶12 On direct examination, the defendant testified as follows:
¶13 “I pulled to the left of the road and started around. After crossing the bridge, I dropped on to the berm. I proceeded on the berm until approximately eight or ten feet ahead of the truck, at which time I pulled back on the highway. At all times I remained in the left lane of traffic until I was approximately two hundred or two hundred and fifty feet ahead of the truck, however when I pulled on to the road, eight or ten feet ahead of the truck, I did not at no time, swerve.”
¶14 Two of the defendant’s brothers were called as witnesses for the defense, and each of them testified that the defendant arrived home shortly after the accident and that they examined the defendant’s automobile very carefully, and that there was no evidence or damage or scratches that would indicate that the defendant’s car came in direct contact with the plaintiff’s tractor-trailer outfit.
¶15 In connection with this fourth assignment of error, section C of plaintiff’s third assignment of error should be kept in mind, and is based upon the following part of the court’s general charge:
¶16 “Because of this presumption, the burden of proof is upon the plaintiff, before he is entitled to recover in this case, to prove all of the material allegations of the petition by a degree of proof known as ‘a preponderance of the evidence.’ ” (Emphasis added.)
¶17 In using this language, the court undoubtedly had in mind the statutory definition of “material allegation,” which is that a material allegation in a pleading is one which could not be stricken out without leaving it insufficient. However, the court did not give this definition to the jury, and since counsel made no request or did not call this omission to the attention of the court, the assignment of error is not well taken. However, as we shall see later, it becomes important in the consideration of this, the fourth assignment of error.
¶18*329 After the jury had deliberated for some time, it returned to open court for further instructions and, after being asked by the court to state the question, the foreman stated:
¶19 “Your Honor, we have a little difference in opinions in the jury, on the question of whether in this case Coletta Sheets would have to come in direct contact with, whether it has to be proven to become (come) in direct contact with the truck to directly cause the accident.”
¶20 This question the trial judge never answered. The trial court said:
¶21 “I will read to you two sections of the law and give you some instructions thereon.”
¶22 Thereupon, the court read Section 6307-27, General Code, which appeared in his general charge to the jury. He then read Section 6307-20, General Code, which was contained in the general charge. The court then, in another paragraph, read verbatim from his general charge.
¶23 The court then said:
¶24 “With that — that, ladies and gentlemen of the jury, is the law with additional instructions and under the question you pose, is one for the jury to determine.”
¶25 These so-called additional instructions were additional only in the sense that they were reread a second time. They did not satisfy the jury, because the foreman immediately asked the court:
¶26 “Could you read the points on the — because, I mean, on the point they are suing on, about where she goes around and comes in collision with them? I mean on the paper over there, what he is suing her for?
¶27 “By a juror: The petition.
¶28 “By the foreman: You see, there was two points; you read one and then you read the other about did she pass him and come in collision with him. Would you dare read how that reads ?
¶29 “By the court: The court would rather the jury go back and come up with a finding. The pleadings are not evidence. I have read the pleadings in this case to correctly state the claims of the parties, but not for the purpose of evidence. With *330 these instructions, I believe the jury can and should proceed with their deliberations. ’ ’
¶30 After some discussion outside the hearing of the jury as to whether the pleadings should be sent to the jury room, the court said to the jury:
¶31 ‘ ‘ The jury, under the direction of the bailiff, will retire. If you need any further instructions, advise the bailiff.”
¶32 Immediately thereafter, the following appears:
¶33 “(Thereupon, the jury retired for further deliberations)
¶34 “By Mr. Moan:
¶35 “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.”
¶36 Counsel for plaintiff, in his opening statement, did not charge direct contact. His statement is as follows:
¶37 “As soon as the car went to the left and swerved back to the right and the front end got on the highway, and the rear end flew out to the right directly in the path of the tractor in which Mr. Domagala was riding, so close that he knew there would be an accident if he didn’t do something, and he was afraid if he continued straight ahead he would hit that car and roll it over, he instinctively did what any driver would do under those circumstances. He swerved to the right, and, as he did that, his wheels dropped off the road on to the shoulder.”
¶38 It must also be borne in mind that the trial court, early in. the general charge, read the entire petition to the jury, except the caption.
¶39 From this record, it is evident that the jury asked of the trial court a very intelligent and germane question. Simply and legally stated, its question is as follows:
¶40 “Since the evidence is conflicting as to whether or not the two vehicles came in direct contact, and since there is a difference of opinion among the members of the jury, will you advise us as a matter of law, whether the allegation in plaintiff’s petition that there was direct contact is a material allegation, and *331 must be proven, as far as the issues which we are called upon to determine are concerned?”
¶41 In answer to .this question, the trial judge referred back to his general charge and read to the jury certain instructions which in the abstract are legally correct, as far as they go, but were no answer to the question raised.
¶42 In my opinion, it was the duty of the trial judge to answer this question in the negative, and to tell the jury that even if plaintiff had failed to prove direct contact or his lawyers had abandoned that theory, the defendant could be guilty of negligence if it were proven that she brought her automobile back in the center of the highway too soon, and in such close proximity to plaintiff’s tractor as to cause him to believe that direct contact was imminent. The action of the jury in returning a verdict for the defendant soon after having failed to get an answer to their inquiry from the trial judge is, in my opinion, based upon the assumption by the jury that since plaintiff alleged direct contact in his petition and failed to prove it, he could not, ipso facto, recover.
¶43 It is argued by the appellee that the case of State v. Tudor, 154 Ohio St., 249, 95 N. E. (2d), 385, is decisive of this question. The first paragraph of the syllabus of that case is as follows:
¶44 “Where a trial court gives an instruction in answer to an inquiry of the jury which instruction is incomplete but correct as far as it goes, counsel has the duty to request the trial court to charge further so as to eliminate any possible confusion of the jury which may result from the incompleteness of such instruction. Any failure to charge further, if it is error, is an error of omission and not of commission. Unless counsel has requested the court to supply the omission, such error will not ordinarily justify reversal even in a criminal case.”
¶45 Counsel for defendant also rely upon the case of Poe v. Suburban Motor Freight, Inc., 72 Ohio Law Abs., 289, 134 N. E. (2d), 865, which was decided by the Second District Court of Appeals, following the Tudor case.
¶46 It is true that in the case at bar, counsel, after a general exception to the additional instructions, did not use the words, “I request the court to instruct the jury that direct contact *332 need not be proven. ’ ’ However, he did call this specific matter to the court’s attention.
¶47 In neither the Tudor nor the Poe case did counsel make any attempt to request the trial court for additional instructions, nor point out to the trial court any objections had to the charge as given, nor point out to the court any failure to charge along the lines upon which counsel later based the appeal.
¶48 In connection with the case at bar, the following words of Judge Taft in the Tudor case are, in my opinion, of particular significance:
¶49 “A fair administration of justice requires that, when an error occurs in a trial, the trial judge should be given an opportunity, if possible, to correct it.”
¶50 In the instant case, in view of the fact that the question of whether or not there had been direct contact between the vehicles was of such importance, and hotly disputed, I feel that when counsel told the court that it should have instructed the jury that direct contact under the circumstances of this accident need not be proven, he did, substantially, comply with the rule stated in the Tudor case, and that this substantial compliance is sufficient enough for this court to consider the matter. The trial court was “given an opportunity” to correct his error.
¶51 Whethei the jury was seated in the jury box, on its way to the jury room, or actually back in the jury room when counsel called this matter to the attention of the court is of no consequence here. The record shows that it was called to the attention of the court. Furthermore, a trial judge cannot escape the consequences of error by standing mute or. ignoring a matter when his duty calls upon him to act.
¶52 Since, in my opinion, prejudicial error intervened in the submission of this case upon the issue of the negligence of the defendant, the two-issue rule does not apply and for the reasons stated above, I must dissent from the judgment of the majority.