The opinion of the court was delivered by
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 con-
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 Empress Co. v. Nichols, 33 N. J. L. [434] 435, 4 Vroom [434] 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 (2d 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
In the Milstrey ease 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 sus
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 of Dover, supra. Cf. Note, "Nuisance or Negligence: A Study in the Tyranny of Labels,” 24 Ind. L. J. 402 (1949); Messier v. City of Clifton, 24 N. J. Super. 133, 140 (App. Div. 1952), certification granted 12 N. J. 247 (1953); Cochran v. Public Service Electric Co., 97 N. J. L. 480 (E. & A. 1922).
In the leading case of McFarlane v. City of Niagara Falls, 247 N. Y. 340, 160 N. E. 391, 57 A. L. R. 1 (1928), the plaintiff was injured when she caught her heel against a fanlike projection in a sidewalk negligently constructed by
defense, it should not be denied in sporadic cases by the use of an artificial technique.” Cf. Milstrey v. City of Hackensack, supra; Schiro v. Oriental Realty Co., 272 Wis. 537, 76 N. W. 2d 355 (1956); Taylor v. City of Cincinnati, 143 Ohio St. 426, 55 N. E. 2d 724 (1944). The operative facts rather than the label should control and the result should justly be the same though the plaintiff affixes a nuisance label to the defendant’s negligent conduct. As Chief Judge Cardozo firmly put it in the McFarlane case:
“Not a little confusion runs through the reports as to the effect of contributory negligence upon liability for nuisance. Statements appropriate enough in their application to nuisances of one class have been thoughtlessly transferred to nuisances of another. There*536 has been forgetfulness at times that the forms of actions have been abolished, and that liability is dependent upon the facts and not upon the name. Confining ourselves now to the necessities of the case before us, we hold that whenever a nuisance has its origin in negligence, one may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer the label of a nuisance. Junkermann v. Tilyou Realty Co., 213 N. Y. 404, 408, 108 N. E. 190, L. R. A. 1915F, 700; Uggla v. Brokaw, 117 App. Div. 586, 591, 102 N. Y. S. 857; Lusk v. Peck, 132 App. Div. 426, 432, 116 N. Y. S. 1051; Id., 199 N. Y. 546, 93 N. E. 377; Hartman v. Lowenstein, 90 Misc. 686, 689, 154 N. Y. S. 205. Very often the sufferer is at liberty to give to his complaint either one label or the other. It would be intolerable if the choice of a name were to condition liability. The snow or ice suffered by a municipality to remain upon the walk is one wrong, and one only, whatever the traveler may call it. Williams v. City of New York, 214 N. Y. 259, 108 N. E. 448.”
In the instant matter the defendants are not charged with any willful or intentional harm or misconduct — they are charged with active wrongdoing which in the light of the circumstances may be translated into negligent acts of commission. That the plaintiff has called the active wrongdoing 'a nuisance should not enter into the matter. If there were no negligent acts of commission there is no responsibility to the plaintiff. If, however, there were such acts and they caused the injury and death, then the question arises as to whether the decedent himself exercised due care in the light of the circumstances; if he did not and his negligence proximately contributed to the injury and death, then the plaintiff is not entitled to recover.
The pleadings and pretrial order refer to assumption of risk as well as to contributory negligence. The former doctrine is not discussed in the briefs and would seem to have no independent bearing in the case before us. See White v. Ellison Realty Corp., 5 N. J. 228, 235 (1950). Cf. Hendrikson v. Koppers Co., Inc., 11 N. J. 600, 607 (1953); Gudnestad v. Seaboard Coal Dock Co., 15 N. J. 210, 223 (1954); Ford v. Reichert, 23 N. J. 429 (1957); Klinsky v. Hanson Van Winkle Manning Co., 38 N. J. Super. 439, 443 (App. Div. 1955), certification denied 20 N. J. 534 (1956); Pona v. Boulevard Arena, 35 N. J. Super.
Affirmed.
For reversal — Hone.