dissenting.
I must respectfully dissent because, in my opinion, the trial court erred in failing to instruct that if plaintiff’s injuries were caused by the negligence of both drivers she would still be entitled to prevail against defendants and thus failed to inform the jury of the rule of law that any negligence by the driver of the car in which the plaintiff was riding as a passenger was not imputable to her.
The majority says that the instruction given by the trial court is “literally correct”; that “this court has granted the trial court considerable discretion * * * on the effect of a third party’s negligence”; and that “the instruction given in the instant case was not reversible error.”
The instruction given by the trial court was as follows:
“Now as far as this negligence issue is concerned there has been evidence also in the case of the manner in which the driver of the car in which the plaintiff was riding is concerned. In order for the plaintiff to prevail in this case, members of the *100jury, you must find either that the defendant’s negligence caused this collision or contributed to it. If you find that the negligence of the driver of the car in which the plaintiff was riding was the sole and proximate cause of the collision, then of course, the plaintiff cannot recover and you must find in favor of the defendant.”
It may be that there was a possible implication in this instruction that if plaintiff’s injuries were caused by the negligence of both drivers, she would still be entitled to prevail. In my opinion, however, any such implication was far from clear to the ordinary juror.
In a case such as this the well established rule of law that the negligence of the driver is not to be imputed to the plaintiff as a passenger is of fundamental importance and is a rule on which the jury should have been instructed in clear and express terms. This is because the ordinary juror may well be under the impression that a passenger in a car cannot recover for injuries suffered in a collision with another- car if the driver of the car was negligent, even though the driver of the other car may also have been negligent.
For these reasons, the failure to give a clear and accurate instruction in such a case on imputation of negligence, at least when requested, is a “basic and fundamental error” and one that goes “to the heart” of the case. See Finkelstein v. McClain, 331 Pa 198, 200 A 596, 597 (1938). To the same effect, see Atkinson v. Roth, 297 F2d 570, 575 (3d Cir 1961), and Ross v. Wilcox, 190 Cal App 2d 213, 217, 11 Cal Rptr 588 (1961). See also Eid v. Larsen et ux, 200 Or 83, 85, 264 P2d 1051 (1953), and Oregon State Bar Uniform Jury Instructions, No. 72.03. Cf. Raffaele v. McLaughlin, 229 Or 301, 304-307, 366 P2d 722 (1961).
*101It is true that plaintiff did not request an instruction in terms of the legal rule on imputation of negligence. Plaintiff requested an instruction which would have informed the jury of the consequences of that rule, as applied to the facts of this case, in requesting the court to instruct the jury that “if plaintiff’s injuries were caused by the negligence of both drivers, she would still be entitled to prevail against defendant.” No written request, however, was made for that instruction. As a result, plaintiff has no right to complain of the failure to give that instruction. Diller v. Riverview Dairy, 133 Or 442, 448, 288 P 401 (1930).
The clear effect of the subsequent discussion, however, was to object and except to the instruction as given by the trial judge upon the ground that it was an improper and incorrect instruction because it did not inform the jury that if plaintiff’s injuries were caused by the negligence of both drivers, she would nevertheless be entitled to recover.
Not only did the trial court fail to correct its instruction to the jury when its attention was called to that omission, but the instruction that was given by the trial court emphasized the negligence of plaintiff’s driver. Thus, instead of informing the jury that the negligence of plaintiff’s driver was not to be imputed to the plaintiff so as to bar recovery, the instruction stated only its counterpart, the rule that if the negligence of the driver of the car was the sole and proximate cause of the collision, plaintiff could not recover. To instruct on either of these rules without stating the other was worse than to instruct on neither. Standing alone, the instruction given was positively misleading. Hearing it, the average juror might well have *102been confused, if not misled with reference to difference between the non-imputation of the driver’s negligence to his passenger (which was not explained to him, but at most was “implied”), and the problem of proximate cause — a subject on which even lawyers and judges become confused on occasion.
In Williams et al v. Portland Gen. Elec., 195 Or 597, 610, 247 P2d 494 (1952), although under different facts, we said that:
“* * * Everything which is reasonably capable of confusing or misleading the jury should be avoided. Instructions which mislead or confuse are ground for a reversal or a new trial.”
In this case plaintiff has no right to complain on this appeal because her attorney not only failed to make a written request for a proper instruction, but took no assignment of error from the overruling of her exception to the instruction as given by the trial court. It does not follow, however, that the judgment of the trial court must necessarily be affirmed.
In the often-quoted case of Archambeau v. Edmunson, 87 Or 476, 487, 171 P 186 (1908), it was recognized that despite the limitations imposed upon the granting of new trials by Article VII, § 3, of the Oregon Constitution, a court of this state may nevertheless order a new trial on its own motion for error which, if properly excepted to, would have been sufficient cause for the reversal of a judgment “if the court is satisfied that a party has not had his case properly presented.”
In Kuhnhausen v. Stadelman, 174 Or 290, 311-12, 148 P2d 239, 149 P2d 168 (1944), the circumstances were somewhat similar to those involved in this case *103in that it also involved an improper instruction which was described as of such importance that the resulting error “went to the core of the case.” Despite the fact that no exception was taken to that instruction, it was thus held that “the error is one appearing on the face of the record which we are authorized to take notice of by Eule 2 [now Eule 6.18] of the rules of this court.” Because the instruction was “misleading” and the case was “a close one upon the evidence,” the case was remanded for a new trial.
Other cases in which this court did not hesitate to order a new trial under somewhat similar circumstances are the leading eases of Sorenson et ux v. Gardner et ux, 215 Or 255, 264, 334 P2d 471 (1959), and Kraxberger v. Rogers, 231 Or 440, 456, 373 P2d 647 (1962). Those cases also involved erroneous instructions to which no proper exceptions had been taken.
In Atkinson v. Roth, supra at 575, under facts even more similar to those involved in this case, and after holding that the failure to give a proper instruction on the legal consequences of the relationship between driver and passenger was “basic error,” the court went on to hold as follows:
“We are not unconcerned with the failure of counsel to perceive and bring to the attention of the court, on the record, such matter. But, the function of the trial judge necessarily extends beyond conclusive reliance upon counsel. It is the administration of justice with which we are dealing, and this includes the prevention of a miscarriage of justice.”
See also Horowitz v. Bokron, 337 Mass 739, 151 NE2d 480, 485 (1958), and Gerard v. Kenegson, 151 So 2d 26 (Fla App 1963).
*104In this case, however, plaintiff’s attorney did bring the attention of the trial court to this matter, although he did not do so in a strictly proper manner. After examining the entire record, I believe that this is a proper case for application of the rule of Kuhnhausen, Sorenson and Kraxberger.
For reasons previously stated, it is of “fundamental importance” in such a case that the jury be given a clear and accurate instruction that the negligence of the driver of a car is not to be imputed to a passenger, who may recover for injuries suffered in a collision with another car even if both drivers were negligent, unless the negligence of the driver of plaintiff’s car was the sole cause of the accident. Also, for reasons previously stated, the instruction given by the court in this case was affirmatively confusing and misleading.
In my opinion, under the facts of this case, including the critical importance of the question whether the driver of the car in which plaintiff was riding had the right of way (depending upon whether defendant’s car entered S.E. 122nd Avenue from a private driveway or from a public street at an “uncontrolled intersection”), the jury may well have been confused and misled by the instruction given by the trial court and it should have clearly informed the jury that any negligence by plaintiff’s driver was not imputable to her and that if her injuries were caused by the negligence of both drivers, she would nevertheless be entitled to recover. Under these circumstances, I would hold that this case should be remanded for a new trial. For these reasons, I must respectfully dissent.