On appeal from the Middlesex County Circuit Court.
For the plaintiffs, Abraham J. Isserman and Sol D. Kapelsohn.
For the defendants, Hugh F. Doherty and Douglas M. Hicks.
Before Brogan, Chief Justice, and Justices Lloyd and Donges.
LLOYD, J. This is an automobile accident case in which the two paintiffs recovered judgments, the defendants appealing. The grounds of the appeal are rulings on evidence and the charge of the court.
We discover no error in the rulings on evidence, but we think there was error in the charge wherein the learned trial judge said:
"I do not recall, as I see the pleadings here, that there is any allegation of contributory negligence as a defense. The
pleading and the answer in this case is an allegation that this accident, first, was not the fault nor caused by the negligence of this defendant. And second, that the negligence of the plaintiff was the cause of the happening of the accident; the negligence of the driver of the plaintiff's car, was the cause of the happening of the accident."
The second defense in the answer was as follows:
"The negligence of the plaintiff Walter Dragan, the servant and agent of the plaintiff Alex Antoniers, who operated his automobile in a careless and reckless manner and without regard for others using the highway was the cause of the alleged accident."
The law of liability in cases of negligence, to the effect that one who complains of the negligence of another cannot recover if his own negligence has in any wise contributed to the wrong which is made the basis of recovery, is too well settled in this state in actions like the present to call for the citation of authority.
It is equally well settled that if the defendant seeks to avail himself of such contributing negligence as a defense to the charge against himself, he must plead it. ...