I concur in the judgment of affirmance, but as the majority opinion is based upon the unsound reasoning in the Satterlee case, ante, p. 581 [177 P.2d 279], from which I dissented, I cannot agree with the legal theory upon which said opinion is based.
Once it is conceded, as it is in the majority opinion, that the violation of a penal statute or ordinance by one seeking to recover civil damages, does not necessarily bar a recovery, there is no common sense or logic in talking about presumptions or presumptive negligence arising from evidence of such violation. A person involved in an accident may be guilty of violating several statutes or ordinances but such violations may have no bearing upon his alleged negligent conduct. For example, he may be driving an automobile without a driver’s license; his automobile may not have a current license number ; and he may be operating his automobile at night without a taillight and have a head-on collision. Obviously, none of these violations can be said to have any bearing upon negligent conduct, and evidence relating to them would be immaterial and irrelevant. Even when we consider a statute or ordinance relating to conduct directly involved in the accident, it is first a question of fact as to whether there has been a violation, second, whether such violation was a proximate cause of the accident, and third, if both of the foregoing are answered in the affirmative, whether such violation was excused or justified. There must necessarily be involved in the latter the question of whether or not the person charged with such violation acted as a reasonably prudent person under the circumstances. If so, he could not be guilty of negligence. So the test must be in every case, what would a reasonably prudent person have done under the circumstances ? Applying this test to the facts of the case before us, I can perceive *612no basis upon which the finding in favor of plaintiff can be reversed. It was certainly a question of fact as to whether he acted as a reasonably prudent person under the circumstances. To say that the technical violation of an ordinance would bar a recovery under such circumstances is too harsh a rule for any court of justice to announce. True, the ordinance was properly introduced as evidence in the ease, and its provisions are factors to be considered by the trier of fact in determining the issue of contributory negligence. The trier of fact might have determined that plaintiff was guilty of a violation of the ordinance and his conduct in so doing was not that of a reasonably prudent person. Such a determination would have justified a finding of contributory negligence. On the other hand, the trier of fact might have concluded, as it did, that notwithstanding the proof showing a violation of the ordinance, plaintiff's conduct was that of a reasonably prudent person, and he was not, therefore, guilty of contributory negligence. There is no sound basis for the statement that proof of the violation of an ordinance requires a presumption that the violator was negligent. This is not the field in which presumptions operate. They operate in the absence of evidence of the facts of which they are themselves evidence. (Speck v. Sarver, 20 Cal.2d 585 [128 P.2d 16]; Westberg v. Willde, 14 Cal.2d 360, 367 [94 P.2d 590].) Here the evidence showed just what the conduct of plaintiff was, and it was for the trier of fact to determine from the evidence whether or not plaintiff’s conduct was that of a person of ordinary prudence. Assuming there was evidence that plaintiff violated the ordinance, it must be considered with the other evidence in determining the ultimate fact. When this fact is determined either the presence or absence of contributory negligence has been established. This is accomplished without the aid of a presumption. It was proper for the trial court to read to the jury the provision of the Municipal Code of the City of Los Angeles which makes it unlawful for one to “ride upon the fenders, steps, or running board of any street car or vehicle,” and to advise the jury that it was the duty of plaintiff and all other citizens to obey such provision, but in determining whether or not plaintiff was guilty of contributory negligence, the jury should take into consideration all of the evidence relating to the conduct of plaintiff at the time of the accident, and if they determine therefrom that plaintiff’s conduct was that of a reasonably prudent person under *613the circumstances, he was not guilty of contributory negligence.
The instruction given by the court to the jury was much more favorable to the defendant than that which should have been given, and in my opinion it is confusing and does not contain a correct statement of the law. After stating that “Conduct which is in violation of the [Municipal] code sections just read to you constitute negligence per se,” it states that if the jury should find “that any party to this action did so conduct himself, it requires a presumption that he was negligent. ’ ’ The element of proximate cause is not mentioned in the instruction. It has been stated many times, and it must be considered as a settled rule of law that contributory negligence which is not a proximate cause of the accident is not a bar to recovery (Pewitt v. Riley, 27 Cal.2d 310 [163 P.2d 873]; Blanton v. Curry, 20 Cal.2d 793 [129 P.2d 1] ; Rush v. Lagomarsino, 196 Cal. 308 [237 P. 1066]; 19 Cal.Jur. 649) and an instruction which singles out conduct as constituting a basis for a denial of recovery shoidd include the element of proximate cause.
Prom the foregoing discussion it is obvious that any error which existed in the instruction complained of was more favorable to defendant than to the plaintiff, and defendant could not have suffered prejudice thereby.