I dissent. I think that the trial court committed prejudicial error in giving to the jury that portion of instruction IX which instructed the jurors as to the maximum speed limit fixed by law in "business districts" and in "closely built up districts," coupled with instruction X, which told them that failure to comply with a state law is negligence in itself. This instruction naturally and inevitably tended to lead the jurors to believe that they might properly conclude and find that, the place of the accident herein was within a "closely built up district," as to which the legal speed limit was twenty miles per hour, or within a "business district," within which the legal speed limit was fifteen miles per hour. This is particularly true in the light of the allegation of the complaint that the defendant was proceeding "at an unlawful rate of speed, to wit, more than twenty miles an hour." There was evidence which would amply support such conclusion in the mind of a layman. But such a conclusion and finding would be wholly without support in the evidence in this case, inasmuch as there was no evidence tending to show that the city and county authorities had erected the signs which were essential to make these speed limits effective. (Stats. of 1913, p. 639.) The issues herein as to defendant's negligence were narrowed by the evidence to two: (a) whether or not the defendant was negligent in proceeding at "an unlawful rate of speed," and (b) whether or not he was negligent in passing another vehicle to the right thereof. As to both these issues the evidence *Page 435 was sharply conflicting. As to the first, the plaintiff's testimony indicated that the defendant was proceeding at from twenty to twenty-four miles per hour, and defendant's testimony indicated that he was proceeding at from ten to twelve miles per hour. As to the second, plaintiff's testimony indicated that defendant was in the act of passing another vehicle to the right thereof, while defendant's testimony indicated that the other vehicle was in the act of passing him to his left. In this situation it is impossible to determine whether the verdict was predicated upon the conclusion of the jurors that the defendant was negligent in passing another vehicle to the right thereof, or upon the conclusion that he was negligent as a matter of law in proceeding at a speed greater than fifteen miles per hour. If the verdict was in fact based upon the latter conclusion, it was of necessity based upon an erroneous theory of law and should not be permitted to stand. In such a situation the judgment should be reversed. (Jones v. GoldtreeBros. Co., 142 Cal. 383, 387 [77 P. 939]; Lemasters v.Southern Pac. Co., 131 Cal. 105, 108 [63 P. 128]; Hirshberg v. Strauss, 64 Cal. 272 [28 P. 235]; Nofsinger v. Goldman,122 Cal. 609, 617 [55 P. 425]; O'Meara v. Swortfiguer, 191. Cal. 12 [214 P. 975].)
There is no merit in respondent's suggestion that the court can take judicial notice of the fact that the intersection of Van Ness Avenue and Market Street constituted a "business district," as defined in section 1 of the Motor Vehicle Act of 1913, at the time of this accident in 1915. The evidence indicates that this location was within a business district as that phrase is commonly used and understood colloquially, but whether or not it was a "business district," as defined in the Motor Vehicle Act, depended upon a particular question of fact which could only be established by evidence.
Rehearing denied.
*Page 436All the Justices concurred.