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District Court of Appeal, Fourth District, California.


Civ. 2927.

Decided: January 20, 1942

Fred A. Wilson and Martin J. Coughlin, both of San Bernardino, for appellants. Bautzer & Ryan, G. Bentley Ryan, and Gregson Bautzer, all of Hollywood, and Flanagan & Sampson, Bertin A. Weyl, and Perry Bertram, all of Los Angeles, for respondents.

This action has been before this court heretofore on an appeal from a judgment in favor of the defendants which was reversed for reasons therein stated. Blanton v. Curry, 36 Cal.App.2d 575, 98 P.2d 221. Most of the essential facts regarding the accident and injuries are there related.

About 5:30 P. M. on December 12, 1936, John Blanton, Jr., was attempting to cross a thoroughfare known as Euclid Avenue in the city of Upland, when he was run into by a Buick roadster automobile being operated by the appellant Curry. Euclid Avenue is a street consisting of two roadways, each running north and south and having a 65–foot parkway in the center thereof planted with large pepper trees. Euclid Avenue intersects G Street. G Street is a 34–foot street extending east and west but which at its intersection with Euclid Avenue does not continue through to the west in a straight or right–angle course but dead–ends at the westerly curb of Euclid Avenue. John Blanton, Jr., aged 12 years, and his brother Virgil, aged 14, were walking southerly on the sidewalk on the west portion of Euclid Avenue, which roadway is 44 feet wide for a short distance before arriving at G Street. They then pursued a course on an angle toward the southeast to cross the parkway above described and both the east and west roadways of Euclid Avenue, which roadways are 37 feet wide. It was their intention to cross to the sidewalk of G Street on the southeast corner of the intersection. As they reached the west curb of Euclid Avenue, John Blanton, Jr., looked south but saw no cars coming from that direction. He then looked north and saw a car quite a distance away slowly approaching, with its lights burning. After stepping off the west curb of Euclid Avenue at a place described by at least one witness as within the area which would be encompassed by the prolongation of the south curb line of G Street and the south sidewalk line on the south side of G Street near the middle of the roadway, John looked to the south. He then for the first time “heard the motor” and saw a “dark object” approaching “almost on me” but he did not observe any lights on it. Seeing that the car approaching would strike him if he remained in the position he was in when he observed the car for the first time, he darted in a northeasterly direction to complete the crossing and in an attempt to run out of the way of the car, but was struck while in the easterly half of the west roadway of Euclid Avenue by the right portion of the appellants' automobile. He was rendered unconscious by a severe injury to his head. Virgil testified that he did not see any lights on the automobile of the appellants until after the car had come to rest, and at that time he did see the lights shining on the body of his brother which was about ten feet ahead of the standing automobile. Although the foundation for the opinion was quite unsatisfactory, he estimated the speed of the automobile at between “30 and 35 miles at least” when the car passed by, approximately a foot or two in front of him. Appellant Curry testified that he was operating his car in a northerly direction on the easterly half of the west roadway of Euclid Avenue at approximately 20 miles an hour when suddenly there appeared in front of his left headlight the figures of the boys who approached his car from a northwesterly direction, apparently from a point just north of the unmarked cross–walk in question; that he did not see them until he was immediately upon them and was unable to avoid colliding with one of them.

On a retrial of the case the jury returned a verdict for plaintiff John Blanton, Jr., in the sum of $10,000, and for plaintiff John Blanton in the sum of $466.10, against each of the defendants.

It is now contended (1) that the giving of and refusal to give certain instructions was prejudicially erroneous. After giving an instruction to the effect that “the burden of proof in litigation is on the party holding the affirmative of an issue; * * *. It is not enough that the parties charged with the burden of proof produced some scintilla of evidence or enough evidence to raise a suspicion that the fact is as they contend; to maintain such contention it must be established by a preponderance of the evidence,” the court, on its own initiative, gave the following instruction (our letters used for identification):

(A) “The court further instructs you that the plaintiffs are not required to show particularly what the specific act of negligence was which produced the accident, but are only required to show that the collision is one which ordinarily would not have occurred had due care been employed by defendant; when and if the plaintiffs made such proof, the burden of proof shifts to the defendants to show their freedom from negligence, or to show that the plaintiff, the minor plaintiff, was also negligent, and that his negligence proximately contributed to the collision.”

Appellants contend that in effect this was an application of the doctrine of res ipsa loquitur; that the jury was instructed that the plaintiffs were not required to show any special act of negligence on the part of the defendant; that if the accident would not ordinarily have occurred had due care been employed by the defendants then the defendants were required to establish by a preponderance of the evidence their freedom from negligence; that the doctrine of res ipsa loquitur was not applicable to the case at bar and the giving of the instruction was prejudicial error, citing Gonzalez v. Nichols, 110 Cal.App. 738, 294 P. 758; Lake v. Churchill, 20 Cal.App.2d 411, 414, 67 P.2d 107; Keller v. Cushman, 104 Cal.App. 186, 189, 285 P. 399; Gritsch v. Pickwick Stages System, 131 Cal.App. 774, 783, 22 P.2d 554, and Michener v. Hutton, 203 Cal. 604, 609, 265 P. 238, 59 A.L.R. 480. This and other courts have criticized instructions attempting to expound the res ipsa loquitur rule wherein it is stated that the burden of proof shifts from side to side. Ireland v. Marsden, 108 Cal.App. 632, 642, 291 P. 912. Although respondents pleaded negligence in general terms, upon the trial they immediately endeavored to prove, as a part of their case, the specific acts of negligence relied upon. This has been held to destroy the application of the doctrine. Gorden v. Goldberg, 3 Cal.App.2d 659, 40 P.2d 276; Mansfield v. Pickwick Stages, N.D., 68 Cal.App. 507, 229 P. 890; Carlsen v. Diehl, 57 Cal.App. 731, 208 P. 150. Respondents did not sufficiently establish that the accident was such as in the ordinary course of things did not happen if those who had the management and control used proper care. This was an essential element to the application of the doctrine. The reasoning used in Tower v. Humboldt Transit Co., 176 Cal. 602, at page 607, 169 P. 227, at page 230, fully supports this conclusion and is particularly applicable. There it was said:

“As between street cars and other vehicles or persons on the public streets, neither has a superior right, and neither is bound to exercise a higher degree of care than the other. It cannot be said that ‘in the ordinary course of things' a street car does not run into a person on the street if the street car is properly operated. On the contrary, the mishap is quite as likely to be due to the fault of the person struck, or of some third person, or to some unforeseen and unpreventable cause, as to the negligence of those operating the car. At best, the instruction was inapplicable, and therefore misleading.”

It has also been held that the rule does not apply where an unexplained accident might have been caused by plaintiff's own negligence. Olson v. Whitthorne & Swan, 203 Cal. 206, 263 P. 518, 58 A.L.R. 129. The rule has been held to apply in certain automobile accident cases not factually similar. 19 Cal.Jur. p. 714, § 129; 3 Cal.Jur. p. 964, § 196; Ireland v. Marsden, supra. Under the authorities cited the doctrine of res ipsa loquitur was not applicable to the facts in this case. The giving of this instruction was therefore error. Elsewhere in the instructions, however, the jury were repeatedly told that the burden was on the plaintiff to prove by a preponderance of the evidence that the negligence of the defendant was a proximate cause of the injury.

In the Tower v. Humboldt Transit Co. case, supra, a similar instruction on the doctrine of res ipsa loquitur was held erroneous because not applicable to the facts. Notwithstanding the fact that the court did give a proper instruction in reference to the burden of proof, the Supreme Court reversed the action because of that and other erroneous instructions. There the court pointed out that the proof of negligence in that particular case was so unsatisfactory that the errors in instructions could not be disregarded.

In Gonzalez v. Nichols, supra, it was held that the giving of the res ipsa loquitur instruction similar in form was error, but due to the exceptionally clear case of negligence presented under the facts it was held that the giving of the instruction did not result in a miscarriage of justice. The question to determine here is whether under the facts of this case, the evidence of negligence may be so classed and therefore the error can be disregarded under the provisions of section 4 1/2 of article VI of the Constitution. We will consider this question in conjunction with the other instructions and other claimed errors hereinafter set forth.

The next two questioned instructions (B and C) involved the right of the plaintiff to presume that the defendant would obey the law. It is argued that neither of these instructions contained the necessary limitation that the plaintiff should be exercising ordinary care before he would be entitled to assume that the defendant was exercising ordinary care. A similar instruction with slight variations to meet the factual situation involved was approved in Schroeder v. Baumgarteker, 202 Cal. 626, 628, 262 P. 740. Immediately following the two criticized instructions the court said: “And the defendant Curry had a right to expect that the minor plaintiff, or anyone else of his age and experience, would cross the highway in a careful and prudent manner.” It thus appears that the court told the jury in effect that both the minor plaintiff and the defendant Curry had a right to assume that the other would obey the law and would exercise due care and caution in respect to their use of the highway. While it may be true that they do not contain all of the elements which should enter into instructions of this character, the instructions, when considered as a whole, were no less favorable to the defendants than to the plaintiffs and not so incomplete as to justify a reversal of the case.

Objection is made to instruction lettered (D) (plaintiff's instruction No. 7), upon the question of the right of way at a cross–walk. Exception is taken to this instruction particularly as to the use of the term “cross–walk,” as defined in section 85 of the Vehicle Code, St.1935, p. 99, viz.: “That portion of a roadway ordinarily included within the prolongation or connection of the boundary lines of sidewalks at intersections where the intersecting roadways meet at approximately right angles, * * *.” It is contended that there was no cross–walk at the intersection in question because there was no sidewalk, the boundary lines of which could be prolonged on the highway under consideration; that because there was no sidewalk across the highway adjacent to G Street as it intersected the parkway, there was consequently no cross–walk over the westerly roadway of Euclid Avenue in the vicinity where the accident occurred which could be attributed to the prolongation of a sidewalk across the parkway; that any claimed cross–walk across the east roadway of Euclid Avenue would not constitute the prolongation of any sidewalk paralleling G Street, as that sidewalk terminated and merged in the sidewalk paralleling Euclid Avenue; that the above–quoted section of the Vehicle Code limited unmarked cross–walks to those which were the result of a prolongation of the boundary lines of sidewalks and removed the portion of the roadway under consideration from those classified as cross–walks. In other words, it is appellants' contention that there was no legally defined cross–walk at the place of the accident.

Upon the first appeal in this case the appellants urged this identical point and argued that these particular instructions which the court refused to give and which were requested at the first trial were erroneous in defining the rights of pedestrians at cross–walks. It was there held that these instructions were in accordance with the law and that it was error to refuse to give them. In their petition for a hearing in the Supreme Court the appellants again made the same argument which again was disposed of adversely to their contention. The conclusion of the upper court reached on the former appeal, after considering the instructions given at the first trial, constitutes the law of the case in this respect and is binding upon the parties in the subsequent trial thereof. Reid v. Northern Assurance Co., 63 Cal.App. 114, 218 P. 290; Table Mt. T. Co. v. Stranahan, 21 Cal. 548.

Irrespective of this conclusion, section 85 of the Vehicle Code defines an unmarked cross–walk as the “portion of a roadway ordinarily included within the prolongation or connection of the boundary lines of sidewalks at intersections * * *.” [Italics added.] Section 86 of the Vehicle Code defines an intersection as “the area embraced within the prolongation of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways, of two highways which join one another at approximately right angles or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict.” [Italics added.] It has been uniformly held that where a street joins with or crosses a double street, that is, where one whose two traveled portions are separated by a private right of way or parkway, there is one intersection within the meaning of our statute. Cruzen v. Wilcox, 20 Cal.App.2d 728, 67 P.2d 709; Driscoll v. Shipp, 13 Cal.App.2d 591, 57 P.2d 177; Lowenbruck v. Stiglmeier, 7 Cal.App.2d 204, 46 P.2d 251; Schulman v. Los Angeles Ry. Corp., 44 Cal.App.2d 122, 111 P.2d 924; Colburn v. Schilling, 41 Cal.App.2d 541, 107 P.2d 279; Kienlen v. Holt, 106 Cal.App. 135, 288 P. 866. The intersection here involved comes within the provisions of sections 85 and 86 of the Vehicle Code.

On its own initiative the court gave this instruction:

(E) “Our streets are dedicated to the use of the public at all times, the old and the young, the strong and the active. The driver of a vehicle must, accordingly, take precaution that he will not do injury which may be injurious or fatal to any of the users of the highway.”

Appellants complain because this instruction in effect, it is claimed, advised the jury that the driver of a vehicle was required to take such precautions as would prevent injury to any of the users of the highway; that the obligation on the part of the driver of an automobile is to exercise ordinary care; that the instruction in question obligates the driver of a motor vehicle to “take precaution that he will not do injury”; that this, in effect, makes the driver of an automobile an insurer of the safety of the users of the highways; and that appellant was only required to take such precaution as would be taken by an ordinarily prudent person under the circumstances, citing Prato v. Snyder, 12 Cal.App.2d 88, 95, 55 P.2d 255. This instruction as given and standing alone meets with condemnation for the reason that the question whether the user of the highway was himself negligent is not taken into consideration. Thompson v. Baldwin, 26 Cal.App.2d 703, 80 P.2d 198. The basis of the instruction is that in the enjoyment of a common right the participant must exercise constant care that the correlative rights of others may not be unnecessarily impaired or destroyed. Meyers v. Bradford, 54 Cal.App. 157, 201 P. 471. The criticized portion of the instruction was taken out of the context of an instruction in which the court told the jury “that every person has a right to presume that every other person will perform his duty and obey the law * * * Specifically applying that instruction to the case before you, the plaintiff in this case had the right to expect that the defendant Curry would drive his car with due care and circumspection and caution; and the defendant Curry had a right to expect that the minor plaintiff, or anyone else of his age and experience, would cross the highway in a careful and prudent manner.” Then followed the criticized quoted portion. The instruction, when considered as a whole, is not prejudicially erroneous.

Relative to the degree of care required of minors the court gave this instruction which was deficient:

(F) “You are to determine with reference to the pleadings what would an ordinarily prudent child of the age of the boy at the time of the accident do under similar circumstances, or the same circumstances. (Italics ours) * * * In determining the question * * * you must take into consideration, as I have indicated to you, that he is to be judged by the standard of due care of a child of his age at the time of the injury, and that the defendant Curry should be judged by the standard of the age which he appears to be, as to care and caution.”

A more complete rule is stated in Todd v. Orcutt, 42 Cal.App. 687, 691, 183 P. 963, 965, where the court said that “plaintiff was required to exercise the same degree of care, no more and no less, than would be expected from a child of his age, or which children of his years ordinarily exercise under like circumstances, taking into consideration, not only the boy's age, but his capacity for understanding.” (Italics ours.) The court did give additional instructions, one covering part of the deficiency complained of which appellants also criticize, without merit, for other reasons. It reads in part:

(G) “The plaintiff in the instant case is a minor and judgment is not passed on his conduct with the same strictness as in the case of adults. Children are not regarded as possessing the same mental capacity to appreciate the danger incident to the use of a public thoroughfare as those of mature age. What is required of a child is that he shall exercise the same degree of care as will ordinarily be expected of a reasonably careful child of the same age and intelligence under like circumstances.”

In addition to many similar instructions, at appellants request the court gave an instruction to the effect that:

(H) “The fact that the plaintiff was a boy between 12 and 13 years of age did not free him of the obligation of exercising ordinary care for his own protection. He was required to exercise that care which an ordinarily prudent person of his age, discretion and intelligence would have used under the circumstances.”

The plaintiff John Blanton, Jr., being a minor, was entitled to an instruction as to the duty of care exacted of minors. Bowdoin v. Southern Pacific Co., 178 Cal. 634, 174 P. 664. Similar instructions have been upheld. Studer v. Southern Pacific Co., 121 Cal. 400, 404, 53 P. 942, 66 Am.St.Rep. 39; Shannon v. Central–Gaither Union School District, 133 Cal.App. 124, 23 P.2d 769.

It is argued that it is equally as dangerous for a minor as for an adult to cross a street after ascertaining the approach of an automobile. There can be no claim that the jury was incorrectly advised as to the law in this respect.

Appellants next complain of an instruction (I) given on the court's own motion, on the question of burden of proof. This instruction informed the jury that “the burden is on the defendants to establish the affirmative allegations of their answer, for example, regarding the point of contributory negligence * * * that is, negligence of the minor plaintiff, which proximately contributed to the injury of the plaintiff, the burden is on the defendants to sustain that contention.”

Appellants argue that the instruction did not clearly state the rule which is that the defendants have the burden of proving contributory negligence, unless it affirmatively appears from the plaintiffs' own evidence, citing Marr v. Whistler, 49 Cal.App. 364, 371, 193 P. 600; Soda v. Marriott, 118 Cal.App. 635, 642, 5 P.2d 675. The rule, correctly stated, is that negligence on the part of a plaintiff is a matter of defense to be proved affirmatively by a defendant unless it can be inferred from the evidence given in the plaintiffs' case. Marr v. Whistler, supra. In Daniel v. Asbill, 97 Cal.App. 731, 276 P. 149, the appellant claimed that a similar instruction was erroneous. In answering that argument the court held that the instruction was a correct statement of the law and did no more than inform the jury as to the question of the burden of proof; that if the defendant desired a further instruction to be given, he should have requested it, but obviously, no harm could have resulted from the giving of the instruction. To like effect see Richmond v. Moore, 103 Cal.App. 173, 284 P. 681. Appellant offered no additional instruction on the subject. Although incomplete in form, no harm could have resulted from the giving of the criticized instruction.

On its own motion the court gave this instruction:

(J) “In order that contributory negligence may be successfully established as a defense, it must be first shown that negligence of plaintiff alleged to be contributory negligence, concurred and cooperated with the negligence of the defendants up to the very time of the injury.” (Italics ours.)

Appellants charge error because this instruction led the jury to believe that the failure of the minor plaintiff to look before crossing the roadway may not have proximately contributed to the accident because it occurred prior to the “very time of the injury” and did not concur and cooperate with the negligence of the defendants “up to such time,” and argue that the error was aggravated by the refusal of the court to give two of appellants' instructions bearing on the question. To say that the negligence of a plaintiff, in order to be contributory, must concur and cooperate with the negligence of a defendant up to the very time of the injury is not a complete statement of the rule. Salomon v. Meyer, 1 Cal.2d 11, 32 P.2d 631. It is apparent that the court was endeavoring to paraphrase the rule that the proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produced the injuries, and without which the results would not have occurred; that the defense of contributory negligence is predicated upon a defendant's own negligence; and that any want on the part of a plaintiff of the care which is appropriate under the circumstances is negligence and will prevent a recovery if it be one of the proximate causes of the injury. Civ.Code, § 1714; Wiezorek v. Ferris, 176 Cal. 353, 167 P. 234; Konig v. Lyon, 49 Cal.App. 113, 192 P. 875; Steinberger v. California Electric, etc., Co., 176 Cal. 386, 168 P. 570. The instruction as given, when considered with other proper instructions on the subject, was not harmful. Similar instructions have been approved. 19 Cal.Jur. 649, § 78.

The court voluntarily on its own motion gave several instructions, designated (K), which outline a general rule respecting both plaintiffs and defendants as to the duty to look and see that which they could have seen had they looked. In many instances the court commented with words to this effect: “In determining that issue, you must take into consideration the age of John Blanton, Jr., and the maturity of Curry, of course.” Appellants contend that the court overemphasized the matter of the age of respondent John Blanton, Jr., and accordingly cast a greater burden on the defendants than on the minor respondent to look and see. No error appears. Duehren v. Stewart, 39 Cal.App.2d 201, 209, 102 P.2d 784. Courts, of course, should not unduly emphasize matters contained in instructions which would be detrimental to either party. Minors, as well as adults, are required to exercise ordinary care, but it is well settled that the ordinary care which a child is required to exercise must be determined by a different rule than is required in the case of adults. Mayne v. San Diego Electric Ry. Co., 179 Cal. 173, 178, 175 P. 690; Schierhold v. North Beach & M. R. R. Co., 40 Cal. 447. It was therefore proper to say to the jury in effect that in determining whether or not the failure of the minor plaintiff to see, if he looked, assuming it did find that he looked and failed to see constituted negligence, it should take into consideration the fact that he was a minor. It cannot be said that the action of the trial court in this respect was erroneous.

The trial court, by way of explanation and example, orally instructed the jury (L) that the judgment in the case might be for $10,000 against Curry, the driver, but could be for only $5,000 against Koehler, the owner of the car, but if Koehler was the principal and Curry was the agent, as stipulated, then there was no such limitation as to Koehler. The jury returned a verdict of $10,000 against both, the same amount suggested in the example. Appellants complain because they believe the jury followed the suggestion of the court and not the evidence as to the amount of damages. It is difficult to appraise the power of suggestion, especially as between the trial judge and the jury. Precaution should be taken to prevent criticism in this respect. In the instant case, however, the trial court did specifically inform the jury that the amount stated was “as an example, and not in any way as a suggestion.” While this instruction is not to be commended, standing alone, it cannot be considered prejudicially erroneous.

The court in one instruction (M) upon the issue of damages, on its own motion, said: “* * * damages, if any, * * * may be awarded for the detriment resulting after the commencement of the action and for damages resulting in the future * * *. You are to take into consideration * * * pain and suffering to the injured in the future, if any, which are the result proximately of the collision.” (Italics ours.) The instruction is claimed to be prejudicially erroneous because it did not contain the limitation “for detriment resulting or certain to result in the future,” citing Melone v. Sierra Ry. Co., 151 Cal. 113, 116, 91 P. 522; Civ.Code, § 3283. This was the only instruction upon the issue of future damages. It is clear that the instruction as worded does not use the term “certain to result,” as used in section 3283 of the Civil Code. Since the decision of Melone v. Sierra Ry. Co., supra (1907), several cases have been before our higher courts which, to some extent, have relaxed the rule therein stated. In several of these cases the courts discuss the propriety of instructions relative to future damages which do not contain the words “certain to result in the future” and which appear to be less favorable to a defendant than the instructions in question here. They are held to be proper and not to constitute error. Zerbo v. Electrical Products Corp., 212 Cal. 733, 735, 300 P. 825; Learned v. Peninsula R. T. Co., 49 Cal.App. 436, 439, 193 P. 591. We do not believe the language used in the instruction is such that it left the estimation of future damages to the conjecture or whim of the jury as contended. Although the word “certain” does not appear in the instruction as given, nevertheless the element of certainty is present and there can be no room for conjecture when the jury has been limited to the loss or damage “resulting in the future” which the evidence shows the minor plaintiff will sustain and “which are the result proximately of the collision.” The instruction given, while not a model to be followed in the future, cannot be held to be prejudicially erroneous.

The trial court refused appellants' instruction 25 (N), offered in the language of section 562, subdivision (a) of the Vehicle Code (1935), St.1935, p. 188. There is evidence that the respondent might have been crossing the roadway at a point other than in an unmarked cross–walk.

In this respect Robert E. Curry testified that:

“Q. You are familiar with the place where G Street intersects the west roadway, are you? A. I am.

“Q. With relation to that intersection where were you when you first observed the Blanton boys? A. I was even with the curb of the curb line; the front of my bumper was almost even with the north curb line.” A diagram of the car was then placed on the map (indicated C–1). The position of the front end of the car at that place, from the map, would be approximately on the north line of the unmarked cross–walk in question.

Appellant then testified:

“Q. When you reached this point ‘C–1,’ you say you first saw something abnormal there in the road? A. Well, I saw two boys coming to me from off my left, it couldn't have been more than five or six feet from my left–hand bumper––

“Q. You have indicated, but probably not expressed verbally the direction from which the boys approached you. A. They came, they were coming into my car diagonally from the northwest from me,” (about a 45 degree angle).

“Q. Prior to the time you collided with him, he had proceeded on an angle, something like this, towards your automobile (indicating)? A. I don't know what angle he was proceeding; when I saw the boys they were running directly at my left front fender; they were coming more from the north––or as much from the north as they were from the west.

“Q. In other words, you would say about a 45 degree angle? A. Yes, sir.

“Q. Then he turned off in the opposite direction, at about the same angle, like this (indicating).”

“Q. Can you locate approximately the point, Mr. Curry, where the two collided * * * where the car and the boy came together? A. Well, they were just about even with the front curb––maybe a little bit farther north.

“Q. With respect to the two points indicated as C–1 and C–2, can you indicate about where your car was when you struck the boy? A. I would say just about beyond the curb on the north of ‘G’ when I hit the boy.

“Q. This is the curb you were talking about and indicating? A. Yes, sir; I was maybe a little bit farther north when I hit the boy.” (Which point was outside of the unmarked cross–walk.)

“Q. How far from ‘C–1’ did you progress before your car was brought to a stop? A. Well, the front end of my bumper was about even with the south curb of G Street on the north” (point C–2). This distance would be approximately 30 feet. Curry testified that “I stopped in about 12 feet” after striking the boy. The place of the accident then, according to this testimony, would be 12 feet back from point C–2, which would be about 18 feet north of the cross–walk in controversy.

From this evidence, together with the inferences that may be drawn from the facts stated, this court cannot say that there was no evidence from which the jury may have been justified in believing that the injured boy was not crossing within the unmarked cross–walk. At the time the car struck the boy, it is most convincingly shown that the boy was not in the unmarked cross–walk.

The instruction in question should have been given. It was material to the issue. Garcia v. Conrad, 40 Cal.App.2d 167, 104 P.2d 527. This was error. However, the court did give an instruction on the subject that “Curry” was bound “under the law to yield the right of way to * * * Blanton, Jr., provided you find that” he “* * * was crossing * * * within the unmarked cross–walk * * *.” The only question to determine is whether or not the error was prejudicial under the circumstances. This will be subsequently discussed.

The court refused appellants' instruction No. 10 (O). The evidence produced by appellants indicates that some cars use the east roadway or lane of Euclid Avenue, both northbound and southbound; that a portion of the northbound traffic also uses the east half of the west roadway of Euclid Avenue. Upon cross–examination appellant Curry was interrogated with the apparent effort to establish that the westerly roadway of Euclid Avenue was used exclusively by southbound traffic. The interrogation was directed towards establishing that appellant was driving his automobile at a place where he did not have a right to be. This refused instruction was as follows:

“You are instructed that at the time and place involved in this case, Euclid Avenue consisted of two separate highways; that for the purpose of traveling thereon each highway constituted a complete highway, which could be lawfully used as such, independent of the other highway, and that upon each of said highways, it was lawful to travel in both directions.”

The reason why the trial court refused the instruction is not given. Whether an instruction on the subject, proper in form, should have been given depends on the nature of the roadway at the point involved, and whether appellant was lawfully and rightfully on that portion of the highway. Appellant has raised the question and claimed the right to this instruction, but does not fortify the claim by applicable authorities. We are not enlightened on this subject by respondents' brief because they justify the court's refusal to give the instruction, not on the theory that appellant was traveling on the wrong side of the highway, but on the theory that the trial court properly refused the instruction because “there was no dispute” on the trial of the case as to the right of appellant to travel north on that portion of Euclid Avenue where he was traveling, “and in fact the right was conceded” by respondents. If this concession is correct, the instruction should have been given, but using the word “roadway” instead of “highway” where that word appears in the instruction.

In Casalegno v. Leonard, 40 Cal.App.2d 575, 105 P.2d 125, the court used the term “highway” instead of “roadway” in an instruction. It was there held that the misuse of the word “highway” did not mislead the jurors, who were assumed to be of ordinary intelligence.

In Raymond v. Hill, 168 Cal. 473, 143 P. 743, 748, the court said: “There may well have been a misapprehension in the minds of the jury concerning the right of vehicles to use the left–hand portion of a highway. Appellant was entitled to the instruction that he was lawfully and rightfully upon that portion of the highway.”

Section 81 of the Vehicle Code [1935], St.1935, p. 98, defines “street” or “highway” as “a way or place of whatever nature open to the use of the public as a matter of right for purposes of vehicular travel.” Section 83 of the Vehicle Code [1935] defines a “roadway” as “that portion of a highway improved, designed or ordinarily used for vehicular travel.” The terms “street” and “highway” as used in the Vehicle Code are not synonymous with the term “roadway.” The term “roadway” covers only that territory improved, designed or ordinarily used for vehicular travel. The term “highway” covers not only that portion used for vehicular travel but also that portion used for parkings, sidewalks and pedestrian travel. § 84, Vehicle Code [1935]; Casalegno v. Leonard, supra; Buchignoni v. DeHaven, 23 Cal.App.2d 76, 80, 72 P.2d 159; Ketchum v. Pattee, 37 Cal.App.2d 122, 98 P.2d 1051; Summers v. Dominguez, 29 Cal.App.2d 308, 84 P.2d 237; Scalf v. Eicher, 11 Cal.App.2d 44, 53 P.2d 368; Mecchi v. Lyon Van & Storage Co., 38 Cal.App.2d 674, 102 P.2d 422, 104 P.2d 26. In considering the definitions of the words “highway” and “roadway”, as used in these sections, we must bear in mind that when used in the Vehicle Code they are used for the special purposes of that act, and that sections of other codes and the decisions under them relating to the use of the same or similar words can have little bearing on the solution of this problem. Sills v. Forbes, 33 Cal.App.2d 219, 223, 91 P.2d 246; Scalf v. Eicher, supra. In 1931 section 21 of the California Vehicle Act, St.1931, p. 2102, defined a highway as “Every highway, road, * * * laid out or erected as such by the public or dedicated or abandoned to the public, or intended or used by or for the general public, except such portions thereof as are used or prepared for use by pedestrians as sidewalks.” There was no definition of a “roadway,” as such, nor was there a legal distinction drawn between a highway and a roadway. Section 122 of the California Vehicle Act [[[[1931], St.1931, p. 2124, then provided that “Upon all highways of sufficient width, other than one–way highways, the driver of a vehicle shall drive the same upon the right half of the highway,” with certain exceptions. It will be noted that the word “highway” is used rather than the word “roadway.” Section 525 of the Vehicle Code [1935], St.1935, p. 181, provides that “upon all roadways of sufficient width a vehicle shall be driven upon the right half of, and as close as practicable to the right–hand curb or edge of, such roadway” [not highway] (Italics ours), with certain exceptions, among them being, “(d) Upon a roadway designated and signposted for one–way traffic.”

The record in the instant case indicates that the roadway in question, in the city of Upland, has not been designated by that city under ordinance as, nor signposted for, one–way traffic. The evidence discloses, however, that several blocks south of the place where the accident occurred, in the city of Ontario, this same roadway has been designated and signposted for one–way traffic by an ordinance of that city under section 459, subdivision (e) of the Vehicle Code [1935], St.1935, p. 164. This fact strengthens the argument that this particular roadway here involved would not be considered as a one–way traffic lane until so designated and signposted by the city of Upland under proper ordinance. Section 144 of the Street and Highway Code, Chapter 268, Stats.1939, p. 1520, provides for the dividing and separating of any state highway into separate roadways, and makes it unlawful to drive other than on the right of the central dividing curb or separation. The street or highway under consideration here does not come within the provisions of that act. A highway may consist of two roadways. This court so held in Kienlen v. Holt, 1930, 106 Cal.App. 135, 288 P. 866, 867, where a similar condition of roadways existed. It was there stated: “There are two roadways for vehicular traffic, each 35 feet in width, separated between intersecting streets by a parking 40 feet in width.” The case of Driscoll v. Shipp, 1936, 13 Cal.App.2d 591, 57 P.2d 177, involved two roadways along San Vicente Boulevard in Los Angeles. Each roadway was 40 feet wide and was separated by a railway right of way. One of the cars involved in the accident was proceeding west on the southerly roadway of San Vicente Boulevard. No question was raised as to its right to travel on that roadway. Lowenbruck v. Stiglmeier, 1935, 7 Cal.App.2d 204, 46 P.2d 251, involved an accident on Crenshaw Boulevard in Los Angeles. That boulevard runs north and south, having two roadways, each about 59 feet in width. These roadways, at that time, were each used for both north and south travel and were separated by a strip of land 33 feet in width on which street car tracks were laid. Each of the roadways were paved and had a curb on each side. There the plaintiff drove his car south on the westerly roadway of Crenshaw Boulevard. The court gave an instruction to the effect that “* * * in law, there are really two streets which constitute Crenshaw boulevard.” The court then, as a part of that same instruction, erroneously defined the intersection. The instruction was disapproved because of the definition of the intersection. Again no contention was advanced that the plaintiff was on the wrong side of the roadway. The highway described in Cruzen v. Wilcox, 20 Cal.App.2d 728, 67 P.2d 709, is factually similar to the instant case. See, also, Cunningham v. Cox, 126 Cal.App. 685, 15 P.2d 169.

Our attention has not been directed to and we find no provisions of law which would have prevented the appellant from lawfully traveling on the right half of the roadway where his car was admittedly traveling. The appellant was therefore entitled to an instruction to that effect. Raymond v. Hill, supra.

The appellants called Paul V. Snyder, a storekeeper in Upland, California, who testified that on the night of the accident appellant Curry came to his store to make a purchase and upon leaving called attention to the fact that one of the lights on his car was out; that thereupon Curry got into his automobile and changed the beam; that the lights were then satisfactory; that the witness so indicated to appellant who then drove away north on Euclid Avenue. At the previous trial Snyder had been called by the appellants and testified to the same effect. Before the second trial, for some reason, Snyder was subpoenaed by the respondents through a Mr. Kerr. After the witness testified for the appellants, upon cross–examination respondents endeavored to impeach his testimony as follows:

“Q. Did you tell Mr. Kerr at that time, before you came up to this trial to testify for the plaintiff that you would want $25 to come up? A. I told Mr. Kerr that it was worth that much to leave my business and lock it up because I operate it almost single handed, with the exception of a delivery boy.

“Q. Mr. Kerr told you that he would give you the exact mileage provided by law plus $4? A. No, he didn't. Mr. Kerr refused to pay me anything. I presume it was because he knew I was subpoenaed by the other side; and he said he had no authority to make any payment. * * *

“Q. But you demanded $25 of him? A. I didn't demand $25; I told him it was worth that if I closed up my business.

“Q. And you told him you would not do anything unless you got your $25, isn't that correct? A. No, that is not true.”

Thereupon the court took up the examination and instead of accepting the witness's testimony that he had not demanded $25 as a fee to appear as a witness for the plaintiffs, assumed the attitude of the attorney for the plaintiff that the witness had demanded $25 as a fee for appearing in court. The court then proceeded to examine the witness upon the assumption that his testimony had been purchased by the appellants as evidenced by the following part of the record:

“By the Court: When you were subpoenaed by the defendants, were you paid a fee? (Objection by Mr. Wilson.)

“The Court: I want to know if this witness is at all partisan. You will answer the question. A. I was not paid fees at the time. I was paid fees before I came on the witness stand.

“Q. Did you demand fees of the process server who served process for the defendants? A. I did, and he told me that he would take care of it under the circumstances that he did at the first trial; due to the fact that I would have extra expense of the store he was glad to take care of that.

“Q. How much have you been paid for coming in here? A. $15 * * *.

“Q. And you wanted $25 from the process server of the plaintiff also? A. No, I didn't ask him for $25, I told him that it would cost me that much to come––the loss of time and business.

“Q. You were attempting to get $25 out of the plaintiff, plus the extent of your extraordinary expenses from the defendant? A. * * * I didn't know how much time would be required, and might have to come one day for one side and one for the other.

“Q. (By the Court): You realize that courts of law are entitled to some consideration, and your duty is to come in and serve the court when you are served with process. (Objection by Mr. Wilson.)

“The Court: Overruled. What I am concerned with is the demand of this witness for compensation considerably beyond the statutory requirement, the statutory fees and the statutory mileage; and the reason I am concerned about that is to determine whether or not this witness is interested, by the fact that he has been paid money by the defendant in excess of that to which he is entitled. A. I didn't know in civil actions that I was forced to comply with subpoenas of that kind; I know that I would in criminal actions.

“Q. You are a citizen, I take it. A. Yes, sir.

“The Court (addressing the jury): Because of the extraordinary character of the examination of this witness, you are not to reach a conclusion prejudicial to the defendant, except insofar as the weight of the testimony of this witness is concerned. This witness's examination as to his compensation was to determine the weight of his testimony, as to whether he was influenced by receiving fees beyond the statutory provision * * *. The only prejudice the defendant can suffer is as to the weight of this witness's testimony. The court made a special inquiry because of the surprise of the court that any man, that any citizen, could think that he had a right to fix his own fee for coming in and testifying in the courts of law. The processes of our courts are mandatory; the functions of government are far more important than the personal rights of any individual and our citizens must respond to the agencies of the government without being bought.” (Italics ours.)

“Mr. Wilson: With all due respect and deference to Your Honor, may I now note an exception to the concluding remarks of the court insofar as they may, if they do, reflect on the defendant or the defendants' case now on trial?

“The Court: Very well, you may have an exception.”

It is now contended by the appellants that the effect of this examination by the court, regardless of his instructions or his statements, was to leave the jury with the impression that the testimony of the witness had been purchased by the appellants; that the witness had committed some irreparable offense for accepting money from a person who was willing to reimburse him against loss; that regardless of the witness's denial, the court was convinced that he had demanded a witness fee of $25 from the defendants and that no weight should be given to this testimony; that the attitude of the court, as expressed by his words and actions, resulted in a complete rejection of the witness's testimony and a natural discrediting of the appellants' case.

In Anderson v. Mothershead, 19 Cal.App.2d 97, 100, 64 P.2d 995, 997, where the trial court was charged with prejudicial misconduct, it was stated:

“It would be but natural for the jury to believe that the judge looked with disfavor upon defendant's statements concerning the circumstances of the collision. The error was made worse by the court's remarks which tended to discredit defendant's counsel with the jury. The words of the court in McMinn v. Whelan, 27 Cal. 300, may appropriately be quoted here: ‘From the high and authoritative position of a Judge presiding at a trial before a jury, his influence with them is of vast extent, and he has it in his power by words or actions, or both, to materially prejudice the rights and interests of one or the other of the parties. By words or conduct he may on the one hand support the character or testimony of a witness, or on the other may destroy the same, in the estimation of the jury; and thus his personal and official influence is exerted to the unfair advantage of one of the parties, with a corresponding detriment to the cause of the other.” See also, Davis v. Pezel, 131 Cal.App. 46, 50, 20 P.2d 982; Nicholas v. Crosetti, 16 Cal.App.2d 376, 60 P.2d 335; Robbins v. Roques, 128 Cal.App. 1, 8, 16 P.2d 695.

In Davis v. Pezel, supra [131 Cal.App. 46; 20 P.2d 984], the court said: “We have long known of the excellence of the judge who presided in the court below, and we appreciate the difficulties and annoyances besetting any trial judge. But these considerations must yield to the principle that obtains in this state's courts that the jury must have free rein under the law to determine the facts of the case without intimation thereon from the judge. Whatever loose street criticism is current, it is nevertheless a very fortunate fact that citizens impaneled as jurors look up to and respect the person and opinions of judges presiding. They are quite apt to catch even a slight prejudicial act of the judge and enlarge it into a controlling feature of the case, the most careful and emphatic instructions to the contrary notwithstanding. Some of the comments and actions of the judge presiding in this case could well have impressed the jury with the idea that he had more than a slight leaning toward the plaintiff's side of the case.”

Grouping the incidents as reflected from the record, it seems to us that these same remarks would be appropriate here, and the attitude assumed by the trial judge may be similarly summarized.

Appellants next contend that the evidence is insufficient to justify the verdict and in particular that it established contributory negligence as a matter of law. The jury had the right to determine from the evidence that the injured boy was within an unmarked cross–walk at the time of the accident; that it was the duty of the driver of the approaching car to yield the right of way to him; that the driver of the automobile failed to look; that the lights on his automobile were not lighted; that these acts were acts of negligence and were the proximate cause of the injuries. The evidence in reference to the care taken by the injured boy is conflicting and open to two opposite conclusions, that is, that he was guilty of negligence which proximately contributed to the cause of his injuries, or that he was not guilty of such contributory negligence. In this connection the jury had the right to take into consideration not only the age of the injured boy but also his capacity for understanding. Todd v. Orcutt, supra. It has been repeatedly held that the question as to the capacity of a particular child at a particular time to exercise care in avoiding a particular danger is one of fact falling within the province of a jury to determine. Mayne v. San Diego Electric Ry. Co., supra. It cannot be said that the respondent John Blanton, Jr., was guilty of contributory negligence as a matter of law.

The last objection presented is that the judgment is excessive. It is contended, under this heading, that the jury accepted the illustration or example given as an indication of the court's attitude as to the extent of the damage incurred by the respondent; that the amount awarded may also be attributed to the influence upon the jury of the court's instructions concerning future damages, which were not limited to those damages reasonably certain to be incurred; that the medical testimony, so far as future damages are concerned, left the matter one of conjecture; that the amount of the verdict was the result of passion and prejudice of the jury as well as the errors committed by the trial court.

The injuries complained of and established by the evidence show that John Blanton, Jr., suffered a linear skull fracture in his left occipital region as revealed by X–rays; that he was rendered unconscious and remained so for about a week; that he subsequently complained of headaches, some disturbance of vision, and some impairment of hearing in his left ear; somewhat run down and loss of weight; that these headaches still persisted at the time of the second trial, almost four years after the accident; that they were then recurring at least four times a week. John Blanton, Jr., testified that his “left ear is awful deaf; I cannot talk over the telephone and listen; I cannot hear well over the telephone; and my eyes bother me quite a bit.” He testified that he hears better after his ears are treated but after the treatment they go “back to the deafness awful fast”; that he has “nose bleed awfully at night”; that he does not wear glasses but when he goes to movies he “can't watch them very much”; and that in his school work he did not “get his mind to function” and he didn't learn like he did before the accident.

Although the verdict is quite a substantial amount, considering the injuries, it cannot be said that it is the result of passion and prejudice of the jury and not supported by sufficient evidence. Bowman v. Motor Transit Co., 208 Cal. 652, 284 P. 443; Lahti v. McMenamin, 204 Cal. 415, 268 P. 644.

The question now presented is whether, notwithstanding the errors committed by the trial court in giving the erroneous instructions indicated, and the refusal to give the other instructions indicated, together with the prejudicial conduct noted, considered in connection with the evidence of appellants' negligence and the evidence of respondents' contributory negligence, the judgment can be affirmed under section 4 1/2 of article VI of the Constitution, or whether the proof of negligence of appellants was so unsatisfactory and the question of respondents' contributory negligence so close that the errors in instructions and the prejudicial conduct of the court cannot be disregarded under the above–mentioned provision of the Constitution.

It will be remembered that upon the first trial of this case, on practically the same evidence, but of course without the benefit of full and complete instructions, the jury found for the defendants.

We are convinced that the question of the negligence of the appellants and the question of the contributory negligence of the respondents is so close that, when considered in connection with the erroneous instructions given, particularly instruction lettered (A) in reference to the res ipsa loquitur rule, the giving of the instruction under the circumstances constituted prejudicial error. In this connection the jury may have concluded that the burden of proof shifted to the defendants to establish their freedom from negligence. This erroneous instruction, when considered in connection with the attitude of the trial court in endeavoring to impeach the witness Snyder, produced by the appellants to establish the fact that the lights were burning on his car shortly prior to the accident, was most prejudicial because the trial court indicated, at least by innuendo, that the witness had been bought. This, in connection with other erroneous instructions given and the error of the court in refusing certain instructions, in our opinion deprived the appellants of a fair and impartial trial.

The judgment therefore must be and is reversed and a new trial ordered.

I dissent:

In order to make my reasons clear for failing to agree with my associates in reversing the judgment, I must enlarge on the statement of facts contained in the foregoing opinion.

The portion of Euclid Avenue here involved is a public street of the city of Upland with two driveways, separated, between intersections, by wide central parkways. It runs north and south and has a total width of 196.2 feet between the exterior edges of the sidewalks which extend along its two sides. These cement sidewalks run along both sides of the avenue and are each five feet in width. Between the sidewalks and the driveways are parking spaces 19.7 feet wide bounded on the street sides by curbs. The easterly driveway of the avenue is 37 feet wide and the westerly is 44.2 feet wide. The central parkways north and south of the G Street intersection are 65.6 feet wide. These parkways are bounded by curbs which return on broad curves at G Street. The returns start at points about opposite the inside of the sidewalks on the two sides of G Street. The intersection is 24 feet wide at its narrowest part which is between the curbs of the central parkways. G Street enters Euclid Avenue at right angles from the east. For the purposes of this opinion it can be stated that G Street dead ends at the west curb line of the west driveway of the avenue.

The evidence in many important particulars is not conflicting. The main conflicts are: (1) Whether John Blanton, Jr., and his brother Virgil were walking or running across the west driveway of Euclid Avenue; (2) the exact point of impact; (3) whether the lights on the car driven by Curry were illuminated.

John and Virgil both testified that they were walking in the unmarked cross–walk across the west driveway, at least until John became conscious of the car almost upon him and tried to get out of its way. Curry testified that he first saw the boys when they were five or six feet from his front bumper; that they were running and approaching from the northwest; that Virgil clung to the side of his car until it came to rest; that John turned and ran to the northeast and was struck in the intersection.

Both John and Virgil traced the course they had pursued in crossing the driveway on a map introduced in evidence. They both testified that they looked for approaching cars, both before and at the time they entered the west driveway and saw none approaching from the south; that they entered the intersection at about the center of the unmarked cross–walk; that they proceeded easterly and did not leave the area of the unmarked cross–walk; that John was struck in or near that unmarked cross–walk when he was about two–thirds or more across the west driveway, that is, in the east half of the west driveway. Curry placed the point of impact further north.

The evidence on the question of the illumination of the lights on the Curry automobile is sharply conflicting.

John Blanton, Jr., testified that after looking for approaching automobiles and seeing none, “we started across, and heard a noise, and it sounded like a motor of a car––I guess that is what it sounded like––and looked south, and there was a car, and I started to get out of the way as fast as I could, and that is all I remember. * * * Virgil was just a step or so behind be, and when I heard this noise of the motor I looked south, and the car was just almost on me, so far as I remember, and I was about like that. (Indicating.)

“Q. You have indicated that as being in a northeasterly direction––in other words, you were engaged in an effort to get by the car––is that right? A. Yes, sir.

“And, as you testified, that is the last thing you remember? A. Yes, sir. Virgil corroborated this evidence.

Ned Duvall, a boy who was out in front of a house about 115 feet north of the intersection, testified that he did not see the collision but heard the impact and saw a form flying through the air “that looked like a bale of hay in the air”. * * * I heard the screech of brakes and looked around and saw something going through the air. * * *”

Curry testified that he was driving north on the east half of the west driveway of Euclid Avenue at a speed of “about 20 or 25 miles an hour”; that when his car was in the unmarked cross–walk, “well, I saw two boys coming to me from off my left. It couldn't have been more than five or six feet from my left–hand bumper.

“Q. What did you do then? A. Well, they were running quite fast, and I put my brakes on and of course swerved my car a bit to the right; I didn't have a chance to swerve very far; one boy dodged to his left and jumped in front of my car and jumped up in the air when I hit him, and the other boy jumped on the side of my car and grabbed my seat”; that when he first saw the boys they were approaching him from the northwest at an angle of about forty–five degrees. Curry further testified:

“Q. So you started on up the street, and came to the point of collision, as we understand it, and just at the moment, or just as you hit the boy, or just before, he darted and swerved to his left? A. Yes, sir.

“Q. In a northerly direction? A. Yes, sir.

“Q. In other words, towards the north? A. Yes, sir.” It seems clear from Curry's testimony hereafter quoted that John's course of flight was to the northeast instead of the north.

This evidence, with the other evidence by Curry quoted in the foregoing opinion, is the only evidence in the record to support an inference that the two boys were crossing the driveway outside the unmarked cross–walk. Curry was not asked and did not attempt to locate the position of the two boys when he first saw them, whether they were inside or outside of the unmarked cross–walk. He did locate the position of his car on the map when he first saw the boys and as I view it placed the car well within the unmarked cross–walk and not approximately on its north line. If the markings on the map are reasonably correct the boys were in the cross–walk when he first saw them. I realize the difficulty of attempting to scale a map, such as the one we have before us, where, as here, the witness first marked the position of his car on a map and then an attorney drew broad lines over those marked by the witness. However, Curry saw the boys when they were close to his car. He was not asked whether they were then inside or outside the cross–walk. It must be presumed that his answer to that important question, had it been put to him, would have been against him. It is my opinion that the evidence clearly shows that the boys were crossing in the unmarked cross–walk and were entitled to the protection afforded them by section 560 of the Vehicle Code, St.1935, p. 188. (All references to that code will be to it as enacted in 1935.) The most that can be said to the contrary is that the great preponderance of the evidence shows the boys to have been in the cross–walk with very slight, if any, evidence to the contrary.

It may be, and perhaps is true that John left the cross–walk and ran to the northeast when he saw the Curry car almost upon him and was hit outside the cross–walk. He was in a position of great peril and it was a natural thing for him to run in a vain attempt to escape the imminent danger of being run down by the Curry car. No negligence can be predicated on this attempt to escape, especially in view of Curry's testimony that had John “stopped right then, or maintained his course, I would have hit him with my left front fender; as it was, I hit him on the right side of my car.”

I must consider the propriety of giving defendants' proposed instruction number 10, refused in the court below, which in effect told the jury that Euclid Avenue consisted of two separate highways, each of which constituted a separate highway, upon each of which it was lawful to travel in both directions.

If I understand the foregoing opinion correctly, it is conceded that this instruction was not a correct statement of the law; that before it could be given as a correct statement of the law, the word “roadway” would have to be substituted for the word “highway” wherever the latter appeared.

This concession that the instruction as proposed was not correct should end the argument concerning any error in refusing to give it. A trial judge is not required to give a proposed instruction which is not correct and no error can be predicated upon a refusal to give such an instruction.

However, the foregoing opinion seems to argue that the instruction should have been modified, and as modified should have been given; that it was prejudicial error to fail to do so. I cannot subscribe to any such holding nor do I agree with the argument made at length to the effect that the driveways between the center parkways and the curbs along the outside parking spaces constituted separate roadways upon each of which vehicles could travel in both directions. Such a holding would make it impossible for drivers so traveling to obey other rules of the road established in the Vehicle Code.

In the Vehicle Code, the terms “street” and “highway” are synonymous. § 81, Vehicle Code.

The term “street” means the land set apart and designated for the use of the public (Earl v. Dutour, 181 Cal. 58, 183 P. 438, 6 A.L.R. 1163), and includes sidewalks. § 84, Vehicle Code; Marini v. Graham, 67 Cal. 130, 7 P. 442; Ex parte Taylor, 87 Cal. 91, 25 P. 258; Martinovich v. Wooley, 128 Cal. 141, 60 P. 760.

“A sidewalk is a walkway along the margin of a street or other highway, designed and prepared for the use of pedestrians, to the exclusion of road vehicles and horsemen. It may embrace all that portion of a street from the building line to the curbing, including grass plats or park strips between the walk proper and the curbing.” 25 Am.Jur., page 343.

I therefore conclude that Euclid Avenue, a public street, includes all that portion of ground between its east and west bounding property lines, regardless of the particular use to which any portion of it is put.

Prior to the adoption of the Vehicle Code, the California Vehicle Act, § 122, required drivers of vehicles to drive upon the right half of the highways. At that time driveways were included within the definition of highways and referred particularly to ways to be used by the public on the grounds of universities, colleges and institutions, § 21, California Vehicle Act, as well as certain private ways. § 22, California Vehicle Act, St.1923, p. 520. There was no statutory distinction made by that act between highways and roadways.

When the Vehicle Code was adopted in 1935, the statutory distinction between highways and driveways was omitted and the term “roadway” was defined as “that portion of a highway improved, designed or ordinarily used for vehicular travel.” § 83, Vehicle Code. Based upon this definition my associate argues that the two driveways (used here to denote separated portions of a street used for vehicular travel) were separate and distinct roadways on both of which vehicles could travel in both directions. I cannot agree with this conclusion because a vehicle proceeding south on the west half of the east driveway or north on the east half of the west driveway could not possibly cross an intersection without violating the law. This is demonstrated when we consider the definition of an intersection as applied to this case.

I agree with my associate that there was but one intersection at the point here involved. This conclusion is sustained by the authorities cited. The intersection is bounded on the east by the production of the east curb line of Euclid Avenue across G Street and on the west by the west curb of Euclid Avenue.

This satisfies the definition of an intersection as given in section 86 of the Vehicle Code. All of this intersection is paved and is “improved, designed or ordinarily used for vehicular travel” and so it constitutes a single roadway as defined in section 83 of that code.

Section 525 of the Vehicle Code requires a vehicle to “be driven upon the right half of, and as close as practicable to the right–hand curb or edge of, such roadway,” with certain exceptions not important here. Thus as each intersection on Euclid Avenue constitutes but a single roadway, in order to obey the law it is necessary for all vehicles to cross each intersection to the driver's right of the center of the intersection, which is a medial line equally distant from the west curb and the east curb line of the highway produced across intersecting streets. Thus a driver proceeding north on the east half of the west driveway must, to obey the law, cause his car to make a lateral right angle leap of over 32 feet to his right when reaching the south line of the intersection in order to proceed across the intersection on the right half thereof and obey the provisions of section 525 of the Vehicle Code.

No such impossible construction need be given to section 83 of the Vehicle Code if it is remembered that the singular includes the plural for then roadways are those portions of highways improved, designed or ordinarily used for vehicular travel.

While this is true of section 83 of the Vehicle Code it does not entirely clear the further ambiguity created by section 525 of the same code which provides in part as follows: “Upon all roadways of sufficient width a vehicle shall be driven upon the right half of, and as close as practicable to the right–hand curb or edge of, such roadway * * *.”

The construction to be given this section is probably responsible for the divergence of opinion in this case. My associate gives the section the literal interpretation of permitting a vehicle to be driven on the right–hand side of a driveway and the left–hand side of the center line of a highway without considering the effect of such a holding on other sections of the Vehicle Code, while I believe the various sections of the code should be construed together and brought into harmony if possible.

In Fresno City H. S. Dist. v. De Caristo, 33 Cal.App.2d 666, 92 P.2d 668, 671, it is said: “It is a cardinal rule of construction that, where possible, every clause and word of a statute should be given effect and meaning. Sec. 1858, Code Civ.Proc.; Smith v. State Board of Control, 215 Cal. 421, 10 P.2d 736; Los Angeles County v. Graves, 210 Cal. 21, 290 P. 444; Crowe v. Boyle, 184 Cal. 117, 193 P. 111; Gill v. Johnson, 103 Cal.App. 234, 284 P. 510; Cory v. Cooper, 117 Cal.App. 495, 4 P.2d 581. It is equally true that in construing the component parts of a legislative act the courts should, where possible, give force and effect to each so that the whole act may have life and vitality. Ahern v. Livermore Union H. S. Dist., 208 Cal. 770, 284 P. 1105; In re Haines, 195 Cal. 605, 234 P. 883; People v. Rabe, 202 Cal. 409, 261 P. 303.”

In Re Washer, 200 Cal. 598, 254 P. 951, 954, the Supreme Court said: “We are mindful of the rules of construction which must bind us, which said rules are as follows:

“ ‘Absurd or unjust results will never be ascribed to the Legislature and it will not be presumed to have used inconsistent provisions as to the same subject in the immediate context. The courts will be astute to avoid such results. (Wells Fargo & Co. v. Mayor, etc., of Jersey City, D.C., 207 F. 871.) In the interpretation of statutes courts are not bound by grammatical rules, and may ascertain the meaning of words by the context. Cavender v. Hewitt, 145 Tenn. 471, 239 S.W. 767, 22 A.L.R. 755.

“ ‘ “The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the Legislature apparent by the statute; and if the words are sufficiently flexible to admit of some other construction it is to be adopted to effectuate that intention. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. ‘While the intention of the Legislature must be ascertained from the words used to express it, the manifest reason and the obvious purpose of the law should not be sacrificed to a literal interpretation of such words.’ Words or clauses may be enlarged or restricted to effectuate the intention or to harmonize them with other expressed provisions. Where general language construed in a broad sense would lead to absurdity it may be restrained. The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense they were intended to be used as they are found in the act.” Lewis' Sutherland on Statutory Construction, (2d Ed.) § 376, p. 721.' In re Haines, 195 Cal. 605, 613, 234 P. 883, 886.” See, also, Pasqual v. De Vries, 101 Cal.App. 479, 281 P. 1057; Southern Pacific Co. v. Riverside County, 35 Cal.App.2d 380, 95 P.2d 688.

With these rules of construction before me I cannot conclude that the legislature intended to permit drivers to travel both ways on each side of a highway having two driveways such as we have here. To so hold would make lawful driving impossible by a driver proceeding south on his right–hand side of the east driveway or north, as Curry was doing, on his right–hand side of the west driveway. He could not lawfully cross the intersection. I therefore conclude that Curry was driving on the wrong side of the street at the time and place of the accident and in doing so was negligent as a matter of law.

This conclusion does no violence to the language used in the quoted paragraph of section 525 of the Vehicle Code. It merely construes that section as though it read as follows: “Upon all roadways of sufficient width a vehicle shall be driven upon the right half of, and as close as practicable to the right–hand curb or edge of such roadway”––upon which such vehicle may lawfully travel under the provisions of other sections of this code. The emphasized phrase does not change the necessary meaning of the quoted provision but merely adds to it the limitations contained in other sections, which construction is necessary under the rules already quoted. It harmonizes the various provisions of the code pertaining to this subject without doing violence to the language of any instead of producing an impossible condition under which lawful driving is impossible, which construction is unnecessary and should be avoided.

I am unable to understand what possible bearing an ordinance of the city of Ontario declaring the two driveways of Euclid Avenue in that city one–way streets can have on this case as the portion of that avenue involved here is in the city of Upland. The ordinances of one city can have no force or effect in another municipality. Because one city has legislated on a given subject, and another has not, is of no importance.

Nor can I attach any importance to the evidence found in the record that numerous vehicles were driven in both directions on both of the driveways. Proof that others had violated the law cannot excuse a like violation of the law by Curry. Scalf v. Eicher, 11 Cal.App.2d 44, 53 P.2d 368.

The statement in respondents' brief filed in this court to the effect that the right of Curry to drive north on the east half of the west driveway is conceded, should not influence the decision here. That the question was raised in the trial court is evident from the fact that the instruction under consideration was proposed there. Having been raised there it may be considered here.

I have read all of the cases cited in the foregoing opinion on this question, as well as numerous others, and can find nothing in any of them which is in conflict with the conclusions I have reached. Because in some of them the statements of facts show that one of the parties was driving on his right–hand side of the left roadway does not tend to show a holding that such party was lawfully driving in that position when that question was neither raised, presented nor considered in either the trial or the appellate courts.

In the case of Kienlen v. Holt, 106 Cal.App. 135, 288 P. 866, 867, the statement there made that “There are two roadways for vehicular traffic, each 35 feet in width, separated between intersecting streets by a parking 40 feet in width” cannot be construed into a holding that each driveway constituted a complete separate roadway through its entire length and across intersections upon each of which vehicles might be driven in both directions. The accident in that case happened in 1926 and the opinion was filed in 1930. At that time the word “roadway” had no statutory definition given to it in the California Vehicle Act as it now has in the Vehicle Code, adopted in 1935. In that opinion “roadway” was used in the same sense that “driveway” is used here, namely, as descriptive of the separated portion of a street which was used for vehicular travel.

I agree that the res ipsa loquitur instruction should not have been given, one reason being because the evidence did show particularly what the specific acts of negligence were which produced the accident. For that same reason I cannot regard the instruction as prejudicial. The evidence clearly shows Curry guilty of two acts of negligence, namely, (1) in not yielding the right of way to a pedestrian in an unmarked cross–walk, and, (2) in driving on the wrong side of the street. These acts of negligence are sufficient to support the verdict and judgment.

Generally speaking, I agree with much of the balance of the opinion of my associate except the holding that the errors are so prejudicially erroneous as to have caused a miscarriage of justice and require a reversal of the judgment. With this I cannot agree.

The cross–examination of the witness Snyder should not be condoned. However, I do not regard this error so serious as to require a reversal. Snyder's evidence was directed to the sole question of the illumination of the lights on the Curry car. If those lights had been illuminated Curry should have seen the two boys in the unmarked cross–walk and should have yielded the right of way to them. If they were not illuminated, that fact, in itself, constituted negligence. Regardless of the illumination of the lights, Curry stands charged with two acts of negligence established by the evidence, namely, failing to yield the right of way to a pedestrian in an unmarked cross–walk and driving on the wrong side of the street. With these facts established in the record by a great preponderance of the evidence, the judgment is amply supported and I can see no miscarriage of justice. It follows that the mandate of section 4 1/2 of Article VI of the Constitution comes into play and that the judgment should be affirmed.

GRIFFIN, Justice.

BARNARD, P. J., concurs in the reversal of the judgment.