Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
This appeal impugns a judgment entered on April 29, 1955 against the defendants awarding to the plaintiff Addison Davidson compensatory damages in the sum of $12,000 for the injuries and losses he sustained in the occurrence of the collision of automobiles on the evening of December 29, 1953 at the intersection of Broad and Main Streets in the Borough of Eatontown. The plaintiff was operating a motor vehicle easterly on Broad Street and the defendant Frank Torrey was driving a taxicab owned by the defendant Michael Fornicola, trading as Paramount Cab Company, in a southerly direction on Main Street.
The transcription of the testimony introduced at the trial has been extensively abridged in the appendix to supply only the basis for the presentation of the two alleged trial errors specified by the appellants. A premise disclosed by the appendix is that both the answer of the defendants and the pretrial order defensively projected the averred contributory negligence of the plaintiff Addison Davidson.
To sustain the first ground of appeal our attention is attracted to certain passages in the instructions delivered by the trial judge to the jury. We shall, however, with italics supplied, quote all of the excerpts of significant pertinency.
"* * * In order to entitle the plaintiff to recover damages he must show by a fair preponderance of the credible evidence that the defendants were negligent and that that negligence was the proximate cause of the accident.
The defendants' recorded objection at the trial and emphasized in this appeal relates particularly to the following portion of the court's charge:
"With relation to an affirmative defense the burden of proof never shifts; in other words, it is incumbent upon the plaintiff throughout the case to prove by a clear preponderance of the credible evidence those things which he must prove, but the burden of proceeding in the case of an affirmative defense does shift to the defendant, the person who urges that affirmative defense. So, I say to you that should you decide that the prima facie case of Davidson has been established and you go on to the defense, then, it is incumbent upon the defendant to prove by a clear preponderance and the same preponderance that the plaintiff was obliged to prove in the first
place by the credible evidence, that the plaintiff was contributorily negligent.
In general, a person is charged with the same duty of care for his own protection that is required for the protection of others, and this required the plaintiff, Davidson, at the time and place in question, to exercise that degree of care that a reasonable and prudent person would exercise under the same and similar circumstances, and, so, you may well ask yourselves in considering the affirmative defense of contributory negligence, have the defendants shown by a preponderance of the evidence that Davidson, the plaintiff, did something that a reasonable and prudent person would not have done or failed to do something that a reasonable and prudent person would have done under similar circumstances? If your answer to that is yes, then, that is the end of the case and the plaintiff cannot recover, and just as there are no degrees of negligence in the first place, there are no degrees of contributory negligence, and, so, any contributory negligence, however slight, is sufficient to bar the plaintiff from recovery."
It is noticeable that the trial judge utilized in his instructions a variety of stylistic phrases or expressions such as "the greater weight," "the preponderance," "the fair preponderance," and "the clear preponderance" of the credible evidence.
Counsel for the defendants insists that the linguistic use of the expression " clear preponderance of the credible evidence" as a requisite in establishing the contributory negligence of a plaintiff in an action at law transcends in possible prejudicial importance a mere harmless exercise in semantics.
The rule generally enunciated in our adjudications is that where the charge of the court, taken in its entirety, presents the law fairly and clearly, so that the jury cannot be reasonably thought to have been misled by the instructions, there is no ground for reversing the judgment, though some of the expressions, when standing alone, might be regarded as erroneous. Redhing v. Central R. Co. , 68 N.J.L. 641 (E. & A. 1903); Merklinger v. Lambert , 76 N.J.L. 806 (E. & A. 1908); State v. Timmerari , 96 N.J.L. 442 (E. & A. 1921); J.D. Loizeaux Lumber Co. v. O'Reilly , 104 N.J.L. 510 (E. & A. 1928); Larsen v. Raritan Valley Farms, Inc. , 109 N.J.L. 363 (E. & A. 1932); Johnson v. Central Railroad Co. , 111 N.J.L. 93 (E. & A. 1933); Simons v. Lee , 117 N.J.L. 370 (E. & A. 1937); Vadurro
Admittedly it is an equally well established rule that where two distinct propositions of law are charged, one of which is correct and the other erroneous, and neither of which is expressly withdrawn so that the jury cannot decide which is right, there is consequently reversible error in the record. State v. Tapack , 78 N.J.L. 208 (Sup. Ct. 1909); Collins v. Central R. Co. of N.J. , 90 N.J.L. 593 (E. & A. 1917); Brown v. Public Service Ry. Co. , 98 N.J.L. 747 (E. & A. 1923); Pucci v. Weinstein , 8 N.J. Super. 247 (App. Div. 1950).
And so it has been said that "the ultimate test of the soundness of instructions is, not what the ingenuity of counsel can, at leisure, work out the instructions to mean, but how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary men and jurors understand the instructions as a whole." Kargman v. Carlo , 85 N.J.L. 632 (E. & A. 1914). Cf. Middleton v. Public Service Co-ordinated Transport , 131 N.J.L. 322 (E. & A. 1944).
Assuredly in the law contributory negligence is established by the preponderance, that is, by the superiority in credibility and truth of the evidence adduced to prove it over that in refutation and contradiction of its presence. In exacting proof by the preponderance or greater weight of the evidence, the law does not prescribe the necessary quantum of the overweight or the degree of excess of its superiority in credibility. A preponderance is attained where the evidence in its quality of credibility destroys and overbalances the equilibrium. Thus we deem it to be imprudent and unwise for trial judges in their instructions to the jury to attach to the conventionally adopted and familiar phrases some qualitative or quantitative adjective such as "clear," "plain," "full," "distinct" to the noun "preponderance" in the endeavor to define or denote the requisite range of the preponderancy. The judicial usage of such syntactical
phrases ignites unnecessary controversy. See 7 Words and Phrases, Clear, p. 617 et seq.; p. 657 et seq.; 16 Words and Phrases, Fair ...