Opinion, per ROBINSON, J.

the general charge in that respect was in the clause, "This statute applies to vehicles other than motor vehicles or automobiles." In this respect the court was in error, for the reason that Section 12614-3 applies to all vehicles, including motor vehicles, and a violation of Section 12614 3, by a driver of a motor vehicle, would also be a violation of Section 12614, but a violation of Section 12614 by a driver of a motor vehicle need not necessarily be a violation of Section 12614-3. Since the driver of a motor vehicle is not excused by Section 12614-3 from complying with Section 12614 and displaying two white lights on the front and one red light on the rear from thirty minutes after sunset to thirty minutes before sunrise, the error in this respect was not prejudicial.

The court also charged the jury: "It is the law that violation of a statute of the state constitutes prima facie negligence. That means simply that proof of the violation of statutes by the operating of an automobile or other vehicle contrary to the provisions of the statutes shall be considered as prima facie proof of negligence, but it is not conclusive. If the jury are of the opinion from a consideration of all the evidence that in this particular case under all the circumstances, that the defendant ran his machine at a greater rate of speed than is provided by law, or otherwise disregarded a statutory duty, or that plaintiff disregarded a statutory duty, you are not required to consider that fact as conclusive of the negligence on the part of the defendant or plaintiff unless such negligent act or acts were the proximate or efficient cause of the

Opinion, per ROBINSON, J.

injury; because the fact of general negligence is within the exclusive province of the jury to determine in the light of all of the evidence, as well as in the light of the standard of duty fixed by the statute, as applicable to the peculiar circumstances of this case.

"So, gentlemen, whether the defendant was or was not negligent in all or any of the particulars alleged in the petition, is for you to determine from all the evidence before you in this case. All of the circumstances are to be considered to determine whether an act complained of is negligent. *

"What I have charged you as to lights being required upon automobiles would apply to this charge of defendant, the same legal effect as prima facie negligence, but the same rule also applies that this is not conclusive, but may be overcome, and that it is for the jury to determine from all the evidence whether plaintiff was negligent in this respect and whether it was the direct and proximate cause or directly and proximately contributed to the accident and injury."

The effect of this charge was to submit to the jury the question as to whether a violation of a statute constitutes negligence. This court in the case of Schell v. DuBois, Admr., 94 Ohio St., 93, held: "The violation of a statute passed for the protection of the public is negligence per se." The violation of a statute passed for the protection of the public is negligence as a matter of law and it was the duty of the court to so charge the jury. In the instant case, by reason of the fact that the

Opinion, per ROBINSON, J.

undisputed evidence discloses that but one light was displayed on the front of the motor vehicle, and that no light was displayed upon the wagon, and by reason of the admissions and averments as to time, it was the duty of the court to charge that the plaintiff in error was guilty of negligence as a matter of law in not displaying sufficient lights, and, if the jury should find that the accident occurred one hour or more after sunset, that the defendant in error was guilty of negligence as a matter of law in not displaying a light. It was the duty of the court then to submit to the jury the question whether the negligence of the plaintiff in error was the proximate cause of the injury to the defendant in error and whether the negligence of the defendant in error directly contributed in any degree to his injury, and to submit to the jury the question whether the negligence of the defendant in error was the proximate cause of the injury to plaintiff in error and whether the negligence of the plaintiff in error directly contributed in any degree to his injury, the question of proximate cause being for the jury; but the violation of the statute being conceded neither the court nor the jury had any discretion in the performance of their respective duties with reference thereto, the one to instruct and the other to find negligence.

The court also charged in his general charge, of which no complaint is here made by either party, as follows: "The jury is instructed that if it appears from the evidence that the plaintiff and the defendant were both negligent, and that the negligence of both directly contributed to cause

Opinion, per ROBINSON, J.

the injury, that the negligent acts of both plaintiff and defendant combined so as to directly cause the injury complained of by plaintiff in such way that it is impossible for the jury to apportion the contributing part of each party to the injury, as well as the responsibility therefor, then plaintiff may not recover."

The words "in such way that it is impossible for the jury to apportion the contributing part of each party to the injury" would seem to lead to the inference that if the jury were able to apportion the negligence between the contributing parties, and were able to determine which party was the more negligent, they would then be entitled to return a verdict against such party.

This is not a correct statement of the law of contributory negligence. The doctrine of comparative negligence does not apply in this kind of cases, and it was the duty of the court to charge that if the negligence of the injured party directly contributed in any extent to the injury he could not recover. Neither has the doctrine of last clear chance any application to this case.

We call attention to these parts of the charge that we may not by our silence appear to approve them.

Judgment reversed.

NICHOLS, C. J., JONES, MATTHIAS, JOHNSON, WANAMAKER and MERRELL, JJ., concur.

Statement of the Case.

WHITAKER V. LUEBBERING, Admr.

Section

Evidence-Municipal ordinance-Regulating pedestrians crossing street-Depositions - Notice of intention to take 11534, General Code - Sufficiency of designation of place Negligence-Charge to jury.

(No. 16358 Decided June 8, 1920.)

ERROR to the Court of Appeals of Hamilton county.

This was an action brought in the superior court of Cincinnati by William H. Luebbering, administrator, to recover damages on account of the death of Mrs. Elizabeth Doecker. Mrs. Doecker was killed on the afternoon of August 4, 1917, while crossing Linn street, on the south side of Court street, at or near the usual and customary crossing, when she was struck by an automobile driven by defendant, Abner L. Whitaker.

Upon the trial the defendant offered in evidence an ordinance of the city which provided: "Section 680-10-Safety Zones-(1) The Director of Public Service shall designate all safety zones, street crossings and extensions of sidewalks, and provide for the proper designation of same by mark. *** Section 680-11- Pedestrians - (4) Pedestrians shall not cross streets or highways except at the regularly designated crossings, and then at right angles only."

The defendant also offered in evidence the deposition of the witness, Charles R. Heeter, who was an occupant of the automobile of the defendant at the time of the accident. The deposition of this witness was taken at Camp Hancock, upon notice, of which the following is pertinent: "The above