Royal Gardner drove a truck into a hole filled with water in Akron. It caused him to lose control of his machine which swerved and struck Charles Guy, who was walking on the sidewalk, by reason of which, injuries were sustained. Guy brought an action in the Summit common pleas against the city and recovered judgment.

Error was prosecuted by the city, which contended that the lower court erred in its charge and that the verdict was excessive and contrary to the weight of the evidence. The city contended that a charge made to the jury placing the burden of proof upon it, to show that the proximate cause of the injury was due to the negligence of the driver, was erior. The court of appeals held:

1. Averment that the injury was caused by a third party does not constitute an affirmative defense.

2. The erroneous charge together with a correct charge constitutes a presumption of prejudice, because the court cannot assume that the jury selected the one part of the charge which is correct, and rejected or disregarded the other part which is clearly erroneous. Montanari v. Howarth, 108 OS. 8.

The judgment will be reversed for error in the charge.