Gaulkin, Foley and Collester. The opinion of the court was delivered by Foley, J.A.D.
Plaintiffs appeal from a judgment in favor of defendant entered in the Law Division upon a jury verdict of no cause of action.
The infant plaintiff, by his guardian ad litem, brought action for damages sustained as the result of his being struck by defendant's automobile. His father sued per quod.
The facts in evidence so far as they are pertinent to our determination, are these: at about 5:30 P.M. on April 5, 1961 Alwin, nine years of age and a resident of the neighborhood, was crossing Madison Avenue, Newark, N.J. A line of automobiles was standing awaiting the turn of a traffic light. Alwin looked in both directions and then passed between two of these automobiles. He was struck by defendant's vehicle which was travelling on Madison Avenue. He did not see defendant's car before the accident, nor did defendant see him.
Plaintiffs' first point, and one which we find determinative, is that the court erroneously submitted to the jury the defense of assumption of risk.
Although assumption of risk was not included as a legal issue in the pretrial order, defendant's attorney in his opening statement to the jury (after referring to the defense of contributory negligence) said:
"There is also another defense called assumption of risk and if knowing the situation, living in that neighborhood, he started across that street and then he is hurt, then, he takes on himself the burden and is barred from recovery."
Obviously the attorney thus conveyed to the jury the idea that contributory negligence and assumption of risk were separate and distinct affirmative defenses.
In his summation defendant's attorney reiterated the supposed distinction between contributory negligence and assumption of risk. He said:
"* * * if he were guilty of negligence in any degree and this infant contributed to the happening of the accident, then, the law bars him from recovery.
There is another defense, which, in large measure, is very similar to contributory negligence, and it ...