This сase comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, §1, p. 800, being §4-215, Burns’ 1946 Replacement. See:
Huey
v.
Milligan
(1960),
*96 Appellant brought this action for damages for personal injuries resulting from a collision between an automobile driven by her and one driven by appellee. Trial was by jury which returned a verdict for thе defendant-appellee herein.
The determinative question here is presented by Specification No. 4(f) of appellant’s motion for a new trial which alleges that the trial court committed an error of law by “giving and reading to the jury defendant’s tendered instruction No. 3 over the specific written objection prеviously filed by the plaintiff...”
Among plaintiff-appellant’s objections to the giving of such instruction is that it is “a mandatory instruction which orders the jury to return a verdict for the defendant if the plaintiff was guilty of any negligence which ‘proximately contributed in the slightest degree to the collision.’ ” (Our italics.)
Appellant asserts that a negligent act of the plaintiff must be a substantial factor in, or matеrially contribute to, producing the injury of which complaint is made in order to constitute a proximate cause thereof.
Generally, the same test of causation is applied in determining whether the conduct of the plaintiff proximately contributed to the injury as is applied in determining whether the conduct of the defеndant is the proximate cause of the injury.
Earle
v.
Porter
(1942),
Support for appellee’s position here is based upon the approval of an instruction in
Bain, Admx.
v.
Mattmiller
(1938),
“ ‘If Charles Bain, plaintiff’s decedent herein was guilty of any negligence, no matter how slight, which proximately contributed to the injury and death rеferred to in plaintiff’s complaint, your verdict must be for the defendant.’ ” (Our italics.)
In sustaining such instruction this court, at page 556 of 213 Ind., said:
“As we read this instruction it is in harmony with the law as stated in cases cited. 1 If the plaintiff was guilty of any negligence, no matter how slight, etc., [which proximately contributed to the injury] he cannot recover.” (Our italics.)
There are no degrees of negligencе in Indiana, and if the plaintiff in the present case was guilty of any negligence, however slight, and such negligence proximately contributed to her injury, she cannot recover.
We do not construe Instruction No. 3 herein as being similar to the instruction containing the words “guilty of any negligence, no matter how slight,” involved in Bain, Admx. v. Mattmiller, supra.
After setting out the negligent act, the instruction in the present case states, “if . . . such negligence . . . *98 proximately contributed in the slightest . . .” (Our italics.)
“In the slightest” here modifies “contributed” and refers to the causal relation between, the plaintiff-appellant’s negligence and the injury — and does not refer to or indicate a degree of negligence. There is only one degree of causal rеlation in Indiana, and that is proximate, direct or material.
We do not comprehend how plaintiff-appellant’s negligence could proximately contribute “in the slightest” to her injury. If it is proximate, it is immediate and direct as opposed to remote, indirect or slight.
The appeal courts of this State have, from time to time, confused the rule pertaining to the question of negligence with that relating to the causation or the contribution of the negligent act of the plaintiff necessary to sustain a defense of contributory negligence.
Justice Cardozo recognized the distinction between negligence and causation when, in
Martin
v.
Herzog
(1920),
“We must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and the injury. A defendant who travels without lights is not to pay damages for his fault, unless the absence of lights is the cause of the disaster. A plaintiff who travels without them is not to forfeit the right to damages, unless the absence of lights is at least a contributing cause of the disaster. To say that conduct is negligence is not to say that it is always contributory negligence.”
In the hope of lending some clarification to this question, we shall attempt to distinguish those cases *99 which appear to lend support to appellee’s position here.
A Lake Superior Court 2 case is one of two authorities cited in 2 Reid’s Branson Instructions to Juries, 1960 Reрlacement, §341, p. 123, in support of an instruction containing the words “contributed proximately in the slightest degree to the cause of the collision.” This unreported case furnishes no authority for the approval of such an instruction by this court.
Livingston
v.
Rice
(1933),
“If this instruction stood alone and none other had been given on the subject of contributory negligence, the giving of such instruction would be аvailable error, as it is well settled that any negligence on the part of the injured party which helped to bring about and cause the injury complained of, precludes such party from recovering damages on account of any such injury.”
Negligence which “helped to bring about” and cause an injury would be such as materiаlly, directly or proximately contributed to the injury.
Cousins
v.
Glassburn
(1940),
*100
In
The City of Indianapolis
v.
Cook
(1884),
“In, an action like the present, the law is well settled that there can be no recovery if the plaintiff’s negligence or want of care contributed in any way to the injury complained of Pennsylvania Co. v. Gallentine,77 Ind. 322 , and authorities cited on p. 329.” (Our italics.)
A careful examination of the Gallentine case and cases therein cited on page 329 of 77 Ind. has convinced us that they in no manner support the statement as above quoted from the Cook case.
In our judgment neither Gallentine nor Cook lends support to appellee’s position here. The cases cited on page 329 of 77 Ind. either pertain wholly to procedure or use the words directly, proximately, or immediately when describing causation.
The City of Indianapolis
v.
Cook, supra
(1884),
Pawlisch
v.
Atkins
(1933),
Pawlisch
v.
Atkins, supra
(1933),
“The appellant insists that the use of the word ‘materially’ instead of the word ‘proximately’ constitutes reversible error. Webster’s New International Dictionаry gives the following common definition for the word ‘Materially,’ ‘In an important manner or degree; substantially.’ Ballentine’s Law Dictionary states that ‘to contribute is to help to cause or to furnish some aid in causing the result.’ The failure to use the word ‘proximate’ in defining ‘contributory negligence’ does not constitute error if other words аre used which exclude the idea of a remote, indirect or insignificant causal connection between the negligence and the accident. The question of contributory negligence does not arise except in a case where it has been shown that the defendant was guilty of negligence which was a proximаte cause of the injury. To establish the defense of contributory negligence it is, therefore, not necessary to show that the plaintiff’s negligence was the sole proximate cause of the injury but only that it was a concurring or co-operating proximate cause.”
The foregoing seems to us to be a well-reasоned statement of what is necessary to show a causal connection between the negligence of the plaintiff and the injury of which complaint is made.
While the decisions of both this and the Appellate Court contain much loose language and gratuitous dicta on the subject of what is necessary to prove сontributory negligence, there is recognized in all the better-reasoned opinions the one common factor — that in order to sustain a defense of contributory negligence the plaintiff must have been guilty of negligence which in more than a slight or remote degree contributed to or helped
*102
to produce the injuries;
The City of Bedford
v.
Neal
(1896),
The rule which has generally been followed in Indiana conforms to that enunciated by Restatement of the Law of Torts which defines contributory negligence as conduct on the part of the plaintiff “which is a legally contributing cause, co-operating with the negligence of the defendant in bringing about the plaintiff’s harm.” Restatement, Torts, Yol. 2, §463, p.1227, (1934).
What constitutes legal cause is defined as,
“The actor’s negligent conduct is a legal cause of harm to another if
(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.” Restatement, Torts, Vol. 2, §431, p. 1159 (1934).
*104 To accord with the foregoing rules “the plaintiff’s conduct must be a substantial factor operating with the defendant’s negligence in bringing about the plaintiff’s harm and there must also be no rule of law which relieves him from responsibility because of the manner in whiсh the harm has resulted from his conduct.” Restatement, Torts, Vol. 2, §465, p. 1230 (1934).
Generally, “[a] defendant charged with negligence can rely upon the plaintiff’s negligence as a defense only where there is a direct causal connection between the negligence of the plaintiff and the injury of which complaint is made.” 38 Am. Jur., Negligence, §212, p. 896. A defendant charged with negligence can rely upon the plaintiff’s negligence as a defense only where there is a direct causal connection between the negligence of the plaintiff and the injury for which complaint is made, and . . . the plaintiff’s negligence, in order to bar a recovery, must have cоntributed proximately to the injury.” 38 Am. Jur., Negligence, §212, p. 896, supra.
65 C. J. S., Negligence, §297, p. 1253, states the rule as follows:
“ [C] ontributory negligence in order to bar recovery must be not merely a contributing cause of the injury, but a proximate contributing cause.”
21 I. L. E., Negligence, §88, p. 345, states the rule as followed by all the better-reasoned cases in Indiana as fоllows:
“In, order to constitute contributory negligence, the negligence for which the plaintiff is reponsible must proximately cause or contribute to the injury complained of.”
*105
*104
Contributory negligence, in order to defeat recovery, must be a proximate and not merely a remote
*105
cause of the injury.
Vandalia R. Co.
v.
Fry, supra
(1919),
However, it is not necessary that the word “proximate” be used if the instruction to the jury contains a word or phrase conveying the same meaning.
Earle
v.
Porter, supra
(1942)
From a consideration of the recorded cases in this jurisdiction concerning the requirement for establishing contributory negligence, it is our considered judgment that to sustain a defense of contributory negligence, the negligence for which the plaintiff is responsible must either be the proximate cause of the injury of which complaint is made, or proximately contribute thereto.
“Proximately contributed” imports a direct causal relation between the plaintiff’s negligence and the injury of which complaint is made.
The law recognizes a diffеrence between proximate cause and remote cause; and in defining contributory negligence excludes the idea of a “remote”, “indirect” or “insignificant” causal connection between the negligence and the injury.
Earle
v.
Porter, supra
(1942),
Consequently the negligence of appellee herein could not be both a remоte and a proximate contributing cause of the injury. A negligent act which contributes “in the slightest” to an injury is a remote cause and not a proximate or direct cause.
*106
In
Earle
v.
Porter, supra
(1942),
“It follows from the above discussion that the trial court did not commit reversible error in using the word ‘directly’ nor in refusing to give instead the instructions with the phrases ‘in the slightest’ or ‘however slight.’ ”
The Supreme Court of Minnesota in
Carlson
v.
Naddy
(1930),
Appellee’s Instruction No. 3 in the present case would have been proper on the question of contributory negligence if the words “in the slightest” had been omitted.
For the reasons above stated it was reversible error to give appellee’s Instruction No. 3.
Appellee asserts that since Instruction No. 3 required the causal contribution of any negligence on the part of the plaintiff be “proximate,” as defined in other instructions, such instruction was not erroneous.
*107 Appellee further asserts that the giving of plaintiff-appellant’s Instruction No. 1 as follows:
“Finally, I instruct you, an act of negligence by the plaintiff which has not been' proved to have been a proximate cause of the collision would not constitute contributory negligence within the meaning of these instructions.”,
was an “absolute safeguard against the jury’s being misled” by the giving of the defendant-appellee’s Instruction No. 3.
It is true, as appellee contends, that all the instructions must be considered as a whole and with reference to еach other, and if, when so considered, they properly inform the jury of the rights and duties of the parties to the action, they are sufficient.
Riechmann
v.
Reasner
(1943),
However, defendant-appellee’s Instruction No. 3 herein is a mandatory instruction of such nature that the alleged error therein was, in our judgment, not cured by the giving of plaintiff-appellаnt’s Instruction No. 1.
In considering whether the giving of such Instruction No. 3 constitutes reversible error, we must also consider whether or not the jury might have been misled by it.
Cleveland, etc., R. Co.
v.
Miller
(1905),
*108 *107 As stated hereinabove appelle’s Instruction No. 3 is a mandatory instruction which tells the jury that *108 if they find from a preponderance of the evidence that the acts therein desсribed are true, their verdict must be for the defendant, and error in giving it can be cured only by its withdrawal.
The rule by which we must be guided here was succinctly stated in
Evansville, etc., R. Co.
v.
Hoffman
(1914),
“Appellee does not assert that this instruction is correct, but contends that the instructions as a whole gave the jury a correct idea of the law applicable to the case and that an error in any particular instruction was harmless. Also that a correct result was reached and the case should not be reversed for an error in the instructions. It is true that the instructions are to be considered together and that many defects, verbal inaccuracies and incomplete statements are thereby remedied, or rendered harmless, so that notwithstanding such defects in particular instructions the court may know and declare that the instructions when considered as a whole state the law of the case correctly. But where an instruction deals with a material proposition or issue of the case, and is errоneous, the presumption is that the error was harmful and such presumption will prevail unless it affirmatively appears from the record that it was not prejudicial to the complaining party. The error of such instruction can not be cured by the giving of other correct instructions which contradict the erroneous instruction, but to avoid the effect of such error the instruction must be withdrawn.” See also: Northern Indiana Power Company v. West, Admx. (1941),218 Ind. 321 , 338,32 N. E. 2d 713 ; Indianapolis Traction, etc., Co. v. Mathews (1912),177 Ind. 88 , 106,97 N. E. 320 ; Pawlisch v. Atkins, supra (1933),96 Ind. App. 132 , 138,182 N. E. 636 .
There is no affirmative showing in the record here that the instruction in question was not prejudicial.
*109
Insofar as
The City of Indianapolis
v.
Cook, supra
(1884),
Because they are not likely to reoccur on a retrial it is not necessary to decide other questions properly raised by appellant.
The judgment of the trial court is reversed with instructions to sustain appellant’s motion for a new trial.
Judgment reversed.
Landis, C. J., Achor, Arterburn and Jackson, JJ., concur.
Note. — Reported in