The opinion
Clifford F. Brown, J.,
concurring. I concur in the judgment of reversal. My concurrence in the judgment is reluctant for the following reasons. I agree wholeheartedly that affirmance of the jury verdict should be reversed and a new trial ordered. However, there should be no retrial of the issues of negligence and liability. The case upon remand should be tried only as to the issue of damages sustained by plaintiffs. I concur in the judgment of retrial on the issue of comparative negligence only because a majority of four could not be mustered for a judgment remanding the cause ordering a directed verdict for plaintiffs on the issue of liability and submitting only the issue of damages for retrial.
The record below contained no evidence of negligence of plaintiffs’ decedent. The trial judge recognized this in his remarks, set forth in the majority opinion, when he overruled defendants’ motion for a jury charge on comparative negligence. Consequently there was no evidence for submission of the issue of comparative negligence. Such issue should not be submitted to the jury. Instead the plaintiffs have a right to a directed verdict on the issue of liability.
Reasonable minds could not differ on the issue of negligence and proximate cause. The evidence in this case demonstrated conclusively that defendant Briggs was negligent in his raising of the truck bed, and that his negligence was the sole proximate cause of thé electrocution. Briggs himself testified that he saw the overhead lines before the decedent was *14 electrocuted, that he was aware of the lines when he began to elevate the truck bed, that he was watching the wires as the bed went upythat he was depending entirely on his own observation to avoid contact, and that he was not relying on decedent to watch the lines.
Further, there was unrefuted testimony to the effect that the truck bed had to be less than one-half inch from the wires to cause the electricity to arc. This testimony, and other uncontradicted testimony that burn marks were found on the truck bed, indicated that it had in fact come into contact with the lines, or into sufficient proximity thereto to cause the electricity to arc.
Defendants offered no evidence which could reasonably refute the inescapable conclusion of their negligence created by these facts, whether the truck bed came into contact with the lines or came close enough to cause the electricity to arc. Accordingly, the trial court had a manifest duty to withhold the questions of negligence and proximate cause from the jury. Civ. R. 50(A)(4). Where the evidence relating to an issue is insufficient to permit reasonable minds to reach different conclusions, the trial court is obliged to withhold that issue from the jury. O’Day v. Webb (1972), 29 Ohio St. 2d 215 [ 58 O.O.2d 424 ], paragraph four of the syllabus. The trial court in the instant cause failed to fulfill that obligation. I would remand the cause for a new trial on the issue of damages only.