Dissenting Opinion by
Mr. Justice Musmanno :The trial judge in this case failed to charge on contributory negligence, which was distinctly in the case, and he admitted that “a definition of contributory negligence would undoubtedly have been proper.” The Majority of this Court, however, apparently more concerned about form than with substance, more attentive to shadows than reality, says that counsel for the plaintiff, against whom the verdict went, may not ask for a new trial because at the end of the court’s charge he asked only for a general exception. The law is unquestioned that when the omission complained of goes to a basic fundamental in the case, the general exception is enough upon which to base an order for a new trial.
But the Majority, in criticism of plaintiff’s counsel, says: “Counsel shall not sit idly by, take his chances with instructions given at trial, and then, having lost the case, seek a new trial and a second opportunity, on the ground that the charge was prejudicial to his client.”
*11I would like to offer an observation on this observation made by the Majority. If the lawyer is to be declared at fault in not noting an error made by the trial judge, why isn’t the judge declared to be at fault in perpetrating the error in the first place? I do not intend by my discussion here to indicate any lessening of appreciation of the ability of the trial judge here involved. He is an excellent judge and enjoys the respect of his colleagues and of the bar. Nevertheless, a duty to the bench and bar impels me to state that where the presiding judge is charging on a phase of the law immediately applicable to the facts in the case, he should be as familiar with that law as the lock on his briefcase, and it is his responsibility to instruct the jury properly. If he fails, as failure is apparent here, to tutor the jury on a primary element of consideration in the cause, the omission constitutes basic error which should result in a new trial even though the lawyer does not specifically take exception to .that part of the judge’s inadequate charge.
I thus ask the Majority: if it finds fault with the lawyer for “sitting idly by” while error is being committed, why isn’t it equally critical of the trial judge for “sitting idly by” allowing the error, which he made, to go uncorrected? Who should know more about the error than the judge who is the driver at the wheel, the engineer at the throttle and the pilot on the ship?
Counsel for the plaintiff complained that the judge did not properly charge on the law of proximate cause. The Majority Opinion makes no attempt to point out what it was that plaintiff’s counsel was complaining about, so I will fill in the vacuum by quoting from the charge on this point: “Proximate cause means that without which the accident would not have occurred. It is necessary that not only the accident be due to the negligence of the defendant but also that the injuries resulting therefrom be due to his negligence because *12I’m sure that you know, without my telling you, that, for example, in this or any other case, if a plaintiff claims a low back injury and such injury is due to arthritis and not due to the accident which may have been caused by the defendants, then, you would not expect to award the plaintiff damages for the low back injury.”
This portion of the charge began, as can be seen, with an instruction on the connecting span between an act of negligence and the incident which causes injury and ended with passing over, without any boat or connecting passageway, to another bridge with instructions on the span required between the accident itself and the injury or ailment of which the plaintiff complains. Negligence, accident and physical results are three different phases of a trespass action and may not be merged into one or may they be interchanged one with another. The phrase “proximate cause” could, of course, with correctness of language be employed to indicate a connection between physical violence done a person and a succeeding disablement, but it is normally used in the law of negligence in referring to the agency immediately precipitating the impact which causes the accident or mishap which is the basis of the lawsuit. The unhappy linking up of the cause for an accident with the cause for an injury might well have confused the jury.
I believe that the jury may also have been misled by the court’s charge on the matter of the plaintiff’s crossing over the center line of the road in order to get to his proper lane. The judge said: “If you believe the plaintiff here that he was proceeding lawfully down this highway and that the truck speeded past him on the right and hooked on to his right front wheel, then the truck driver is negligent, and if, on the other hand, you believe that the plaintiff was coming down the *13wrong side of tlie road and cut over, then, of course, it was his fault.”
When the plaintiff “cut over” he was proceeding to his legal side of the road. The jury may have understood from this part of the charge that the plaintiff was doing a wrong thing in moving over the eastward lane, which is the direction the plaintiff intended to pursue. We believe the judge should have more clearly spelled out just what was the factual situation and clarify it in such a manner that the jury would know that, even though the plaintiff may have been doing a right thing, if he accomplished his objective negligently, he could be guilty of contributory negligence. Here again, I believe the jury could have been confused by the instruction.
I repeat that I personally have high respect for the ability of the trial judge in this case. The main purpose of this Dissenting Opinion is to go on record in opposition to the notion inescapable in the Majority Opinion, namely, that a trial is in the nature of a game of chess, and not a serious enterprise dedicated to the ascertainment of truth and the rendition of justice.