[99 NJSuper Page 271] At the close of the evidence plaintiff moves to strike the defense of contributory negligence and
for judgment in his favor on the issue of liability. Plaintiff was a passenger in a car operated by defendant Coghan. Seat belts were available, but plaintiff did not use them. Coghan drove into the rear of a police car which was at a standstill at a red traffic light. Plaintiff struck the windshield, suffering severe facial scars. Defendant Coghan*fn1 opposes plaintiff's motion, on the ground that his failure to use available seat belts suffices to warrant submission of the issue of contributory negligence to the jury.*fn2
There are no reported New Jersey decisions bearing on the question as to whether failure to use available seat belts may constitute contributory negligence and, if so, the legal consequences thereof.
The problem really involves two separate and distinct questions. The first question is, assuming that the failure to use seat belts was contributory negligence, is it of such a nature as to bar recovery against defendant on the issue of liability? The second question is, if such contributory negligence is not sufficient to bar recovery, then may it be considered by the jury in diminution of plaintiff's damages? As to the latter question, are the proofs in this case such that the jury should be permitted to apportion plaintiff's damages so as to subtract from his total damages such amount thereof as may have been due to the failure to use seat belts?
As to question number one, i.e., whether the failure to use seat belts shall be a bar to recovery, the court is convinced that, assuming defendant was negligent and that plaintiff suffered some degree of injuries as a proximate result thereof, the defense of contributory negligence cannot bar recovery. The fact that plaintiff failed to use the seat belts had nothing to do with the happening of the accident, or that he suffered some degree of injuries, prescinding, for the moment, from their extent. The failure to use seat belts
was not a proximate cause or a substantial factor in producing an accident from which "some" injuries flowed or occurred.
Therefore, the court holds that the failure to use seat belts does not constitute a defense sufficient to bar recovery to plaintiff or absolve defendant from liability.
The relevant principle applied herein, i.e., the necessity of distinguishing between negligence contributing to the accident, and negligence contributing to the injuries sustained, is effectively rationalized in Mahoney v. Beatman, 110 Conn. 184, 147 A. 762 (Sup. Ct. Err. 1929), and annotation thereto in 66 A.L.R. 1134. In that case the court quoted from Greenland v. Chaplin, 5 Exch. 243, 115 Eng. R. 104, where the court said:
"'I entirely concur with the rest of the court that a person who is guilty of negligence, and thereby produces injury to another, has no right to say "Part of that mischief would not have arisen if you yourself had not been guilty of some negligence." I think that where the negligence of the party injured did not, in any degree, contribute to the immediate cause of the accident, such negligence ought not to be set up as an answer to the action; and certainly I am not aware that, according to any decision which has ever occurred, the jury are to take the consequences and divide them in proportion according to the negligence of the one or the other party.' Id.; Rigby v. Hewitt, 5 Ex. 240 [155 Eng. Reprint, 103]." (Emphasis added)
The annotation (at page 1135), in referring to Mahoney, points up the issue which this court believes is involved in a seat belt case:
"The decision indicates how sharply the distinction must be drawn between negligence contributing to the accident, and negligence contributing to the injuries sustained."
As to question number two, i.e., apportionment of damages so as to preclude plaintiff's recovering for such damages as may have been caused by his failure to use the seat belts, an entirely different principle is relevant. Restatement, Torts 2 d, § 465, is headed: "Causal relation between harm and plaintiff's negligence." It reads:
"(1) The plaintiff's negligence is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility for it.
(2) The rules which determine the causal relation between the plaintiff's negligent conduct and the harm resulting to him are the same as those determining the causal relation between the ...