For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Weintraub. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
[23 NJ Page 531] The Appellate Division, in an opinion by Judge Conford, set forth the pertinent facts and legal principles and properly held that the evidence was sufficient to call for retrial and jury determination on the primary issues of negligent misfeasance (active wrongdoing) and contributory
negligence. Hartman v. City of Brigantine, 42 N.J. Super. 247 (App. Div. 1956). We affirm thereon and consider it necessary to deal only with the plaintiff's additional contention that the defense of contributory negligence is inapplicable and should not be submitted to the jury on the retrial.
If this were an ordinary negligence action against private litigants no question would be raised as to the applicability of the defense of contributory negligence. Notwithstanding statutory proposals to modify the rigors of the defense, it remains largely unaffected by legislation in our State and many of the other states. And though courts have been viewing the defense with increasing disfavor they recognize its effect and the irrelevancy of the comparative degrees of negligence between the parties. Many years ago Justice Depue expressed New Jersey's position in terms which still hold true:
"In this state the established rule is that if the plaintiff's negligence contributed to the injury, so that, if he had not been negligent, he would have received no injury from the defendant's negligence, -- the plaintiff's negligence being proximately a cause of the injury, -- he is without redress, unless the defendant's act was a willful trespass, or amounted to an intentional wrong, and in such a case the comparative degree of the negligence of the parties will not be considered. New Jersey Express Co. v. Nichols, 33 N.J.L.  435, 4 Vroom  435; Pennsylvania R.R. Co. v. Righter, 42 N.J.L. 180, 13 Vroom 180." Menger v. Laur, 55 N.J.L. 205, 215 (Sup. Ct. 1893).
See Maccia v. Tynes, 39 N.J. Super. 1, 7 (App. Div. 1956); Prosser, Torts (2 d ed. 1955), 283, 290; 2 Harper and James, Torts 1193, 1213 (1956). Compare Bress, "Comparative Negligence," 43 A.B.A.J. 127 (1957), with Harkavy, "Comparative Negligence," 80 N.J.L.J. 97 (1957).
The plaintiff does not dispute the foregoing but stresses that her action is not against private litigants but is against municipal corporations for active wrongdoing in the maintenance and care of a public highway; she urges that her claim is not grounded on negligence and relief should not be barred by contributory negligence. Much has
recently been written in our State with regard to the expanding tort liability of municipal corporations. See Cloyes v. Township of Delaware, 23 N.J. 324 (1957); Taylor v. New Jersey Highway Authority, 22 N.J. 454 (1956); Casale v. Housing Authority, City of Newark, 42 N.J. Super. 52 (App. Div. 1956); Kelley v. Curtiss, 29 N.J. Super. 291 (App. Div. 1954), reversed 16 N.J. 265 (1954). While active wrongdoing still remains the basis of municipal liability it is sufficient if there has been a "negligent act of commission." Milstrey v. City of Hackensack, 6 N.J. 400, 408 (1951); Allas v. Borough of Rumson, 115 N.J.L. 593, 595 (E. & A. 1935). And the more recent cases have displayed a just readiness in finding that the negligent conduct of the defendant municipality in the maintenance and care of the highway included affirmative action which would support a jury determination of active wrongdoing. See Latzoni v. City of Garfield, 22 N.J. 84, 94 (1956); Taverna v. Hoboken, 43 N.J. Super. 160, 165 (App. Div. 1956), certification denied 23 N.J. 474 (1957). Cf. Milstrey v. City of Hackensack, supra; Allas v. Borough of Rumson, supra.
In the Milstrey case the plaintiff was injured when she caught her heel in a broken and depressed sidewalk which had been negligently resurfaced by the defendant municipality. She recovered a judgment which was first sustained by the Appellate Division (8 N.J. Super. 221 (App. Div. 1950)) and later by this court. 6 N.J. 400 (1951). Justice Heher's opinion pointed out that the danger to the plaintiff arose from "a nuisance growing out of negligence" and that the jury was properly permitted to find that there had been an affirmative act of wrongdoing. On the issue of contributory negligence he noted that the jury had been instructed that the plaintiff could not recover if she had been guilty of contributory negligence, and he stressed that the proper standard of care was that which "a reasonably prudent person would have exercised under like circumstances." See 6 N.J., at page 413. In Fredericks v. Town of Dover, 125 N.J.L. 288 (E. & A. 1940), the Court of Errors and Appeals sustained
the plaintiff's recovery for injuries suffered when she fell on a metal covering of a storm gutter located within the street lines of Mount Hope Avenue in the Town of Dover. It held that the evidence was sufficient to support findings that there had been active wrongdoing on the part of the town and no contributory negligence on the part of the plaintiff. Cf. Kress v. City of Newark, 8 N.J. 562, 575 (1952); Kelley v. Curtiss, supra, 16 N.J., at pages 272, 273.
In Hammond v. County of Monmouth, 117 N.J.L. 11 (Sup. Ct. 1936), the plaintiff was injured when the truck he was driving dropped into a highway excavation which the defendant county had made in order to repair bricks in a culvert. The jury's finding for the plaintiff was sustained upon the view that it could have concluded that "there were neither proper or sufficient lights nor barriers around the excavation." The court rejected the contention that the defense of contributory negligence had been wrongfully excluded; it took the position that the defendant had intentionally created an "absolute nuisance" to which contributory negligence could not in any event be asserted as a defense. See Thompson v. Petrozzello, 5 N.J. Misc. 645, 648 (Sup. Ct. 1927); Note, "Nuisance -- Contributory Negligence As Defense," 35 Mich. L. Rev. 684 (1937). But this seemingly placed undue emphasis on the label rather than the substance and has been criticized by Dean Prosser (supra, at 423, n. 58) who suggests that the defendant county's action was not an intentional wrongdoing but the negligent creation of a risk. See Milstrey v. City of Hackensack, supra; Fredericks v. Town ...