(concurring in a separate statement). I concur in the reversal on the law on the ground that the charge of the court did not make it sufficiently clear that in order to defeat a recovery because of the contributory negligence of the decedent, the defendant would have to satisfy the jury not only that the decedent had been guilty of negligence by reason of having violated the statute but also that the violation of the statute was a proximate cause of the accident. I do not believe that the court’s main charge was sufficiently clear on this point. While there were references to proximate cause in the general discussion of the elements of the case, nothing was said to tie in the concept of proximate cause with the charge of statutory violation and to point out that a violation of the statute would be immaterial unless it were found to be a proximate cause of the accident. Furthermore, the court’s final word to the jury that if they found a violation of the statute, it would constitute negligence per se on the part of the decedent, may well have created a misleading impression. While the statement was accurate as far as it went, it did not go far enough. The court should have explained to the jury that a recovery by the decedent would still not be barred unless they also found that the statutory violation was a proximate cause of the accident.
The word “ negligence ” as used in the statement that the violation of a statute is negligence per se, refers to negligence in its narrow sense, that is, the proof of the existence of a duty and the breach of the duty, but that is only part of the defense of contributory negligence as a bar to recovery (or conversely, of actionable negligence as a basis of liability). Thus, if a violation of the statute was found here, it would conclusively establish the negligence of the decedent in the narrow sense of a breach of duty but this would constitute only one element of the defense of contributory negligence as a bar to recovery. The remaining element of the defense would still be open for the jury’s consideration, namely, the question of whether the decedent’s negligence (using that term in the narrow sense of a breach of duty) was a proximate cause of the accident. This was not made sufficiently clear to the jury.