(concurring in part and dissenting in part) — I concur with so much of the majority opinion as grants the defendant a new trial.
I dissent from the conclusion of the majority that the trial court erred in granting a judgment of dismissal notwithstanding the verdict.
The evidence seems conclusive that the plaintiff, when hit, was on the paved portion of the street and, obviously, contributorily negligent in not yielding the right of way to the defendant’s vehicle. Under any possible interpretation of the evidence, she was south of the extended line of the sidewalk on which she had been walking and was on the graveled portion within the area of the street open to and iised by vehicles, and where the defendant’s vehicle had a right to be. Defendant’s exhibit No. 2 (incorporated in the majority opinion, p. 303), makes that very clear. There was a sidewalk for pedestrians on the south side of the street (as defendant’s exhibit No. 2 also shows), and no necessity for plaintiff to be walking in the gravel.
The pertinent portion of RCW 46.60.250 provides:
Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.
The city ordinance of Colfax recites in part:
12.04.160 Pedestrians.
B. Jaywalking. Pedestrians shall not step into that portion of the street open to moving traffic at any point between intersections . . . except at marked crosswalks or other places specially provided.
The appellant violated both the statute and the ordinance. This violation constitutes negligence per se and was a proximate cause of the accident. Sinclair v. Record Press, Inc., 52 Wn.2d 111, 323 P.2d 660 (1958); Roloff v. Bailey, 46 Wn.2d 358, 281 P.2d 462 (1955); Shiels v. Purfeerst, *30839 Wn.2d 252, 235 P.2d 161 (1951); Shelton v. Bennett, 32 Wn.2d 529, 202 P.2d 461 (1949).
I would affirm the trial court’s order dismissing the action.