Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
This is an action arising out of an auto accident. The jury returned a verdict of no cause of action, and plaintiffs appeal. The adult plaintiff was driving an auto west on Central Avenue, East Orange, and his three-year-old son, the other plaintiff, was a passenger. At the time of the accident he was making a left turn into Sanford Avenue when his car was struck by defendants' vehicle which was going east on Central Avenue. The traffic signals at that corner were green, authorizing Central Avenue traffic to proceed.
The three questions raised by plaintiffs on the appeal all relate to the trial court's charge, although none of them were brought to the court's attention at the trial. First, plaintiffs attack that portion of the charge italicized below:
"If you find he himself [the adult plaintiff] by his own course of conduct caused or contributed proximately to the accident he can have no recovery, nor can the infant for whom he sues."
Where a parent is driving a car in which his child is a passenger, the parent's contributory negligence cannot be imputed to the child, merely because of the relationship of parent and child or that of driver and passenger. Newman v. Phillipsburg Horse Car R. Co. , 52 N.J.L. 446 (Sup. Ct. 1890); Gorman v. Mainzer , 8 N.J. Misc. 150, 153 (Sup. Ct. 1930); Hedges v. McManus , 10 N.J. Misc. 336, 342 (Sup. Ct. 1932); Prosser, Torts (2 d ed.), § 54; Restatement of Torts , §§ 488, 490. While we know little more as to the facts beyond that related above, still it was, in effect, conceded on the argument that the case presents no special circumstances to take it out of this rule.
We conclude that the italicized words in the charge constitute plain error of so serious a nature that we should notice it even though it was not brought to the attention of the trial court (see R.R. 1:5-3(c), modifying the third sentence in R.R. 4:52-1) and even though the amount of the child's claim may not be large.
Second, plaintiffs attack the words, italicized below, appearing in another portion of the charge:
"If you find that the plaintiff was guilty of contributory negligence in any fashion, no matter how slight or to what degree , which directly contributed to the happening of the accident, then I charge you to bring in a verdict of no cause of action * * *." (Italics added)
It is, of course, elementary that a plaintiff's contributory negligence will not operate as a bar to his claim unless there is a certain causal relationship between it and the accident. We have held that an instruction is inadequate which makes no reference to this matter of causation, except to say that the plaintiff is barred if his negligence contributed "in any degree" or "in any way" to the accident. Pignatore v. Public Service Coordinated Transport , 26 N.J. Super. 234, 239 (App Div. 1953); Annotation 102 A.L.R. 411, 423; cf. Restatement of Torts , §§ 462, 465; but see Snyder v. Bicking , 115 N.J.L. 549, 550, 551 (E. & A. 1935). In this respect the sufficiency of the present charge (see the portion first quoted in this opinion, insofar as it
deals with the adult plaintiff) has not been dealt with by counsel. However, we need not pursue the matter, for obviously there is no error here so serious as to require us to take notice of it in the absence of an objection thereto in the court below.
We might add that in any case where this matter of causation is sufficiently covered by the charge, it is quite proper for the court also to instruct the jury that the plaintiff is barred if his negligence contributed "in any degree" to the accident. For as the law now stands, it is entirely settled that plaintiff's negligence will preclude recovery notwithstanding that it is lesser in degree than defendant's negligence; for example, the plaintiff may not recover even though his negligence is slight while defendant's negligence is ordinary or gross, or even though it is ordinary while defendant's negligence is gross. New Jersey Express Co. v. Nichols , 33 N.J.L. 434, 439 (E. & A. 1867); Pennsylvania R. Co. v. Righter , 42 N.J.L. 180, 183 (E. & A. 1880); Menger v. Laur , 55 N.J.L. 205, 210, 215 (Sup. Ct. 1893); Conkling v. Erie R. Co. , 63 N.J.L. 338, 341 (E. & A. 1899); George ...