I dissent. The instruction requested by plaintiffs on the sounding of a horn was this: 1 ‘ California Vehiele Code, Section 27001, in effect at the time of the accident, provided in relevant part as follows: ‘ The driver of a motor *546vehicle, when reasonably necessary to insure safe operation shall give audible warning with his horn. ’ ’ ’ The requested instruction failed to quote the last sentence of the code section, which specifies that “The horn shall not otherwise be used. ’ ’
As stated by Presiding Justice Piles in the opinion prepared by him for the Court of Appeal, Second District, Division Pour, when this case was before that court (64 Cal.Rptr. 49, 51-52 [2]), the statute, read as a whole, indicates that the horn is not to be used unless some particular circumstance calls for it. To tell the jury that the first sentence of the section alone is the “relevant part” would be misleading- in the context of this ease. The driver testified that he saw five children approach the truck, the two Blanchard children and two Menehaea children, sisters of the deceased Richard, and another little girl whom he saw go home; that he observed that all four Blanchard and Menehaea children had returned to a position of safety before he started his vehicle; that at no time prior to the accident had he observed Richard. This was corroborated by a neighbor who saw Richard go down the Blanchard driveway to the left front of the truck while the driver’s back was turned.
The jury could have concluded that the driver had no more reason to sound his horn on this occasion than would any other driver starting such a vehicle in a residential area. Under the general instructions on the subject of negligence the jury was of course at liberty to consider whether failure to sound a horn in this instance violated the standard of the reasonable man. But to have squarely presented the issue to the jury in terms of the Vehicle Code section, it would have been necessary to include the qualification contained in the second sentence.
Weiss v. Baba (1963) 218 Cal.App.2d 45, 51-52 [11, 12] [32 Cal.Rptr. 137], appears to be the only case holding that failure to instruct in terms of only the first sentence of section 27001 was error. However, that opinion does not mention the second sentence of the section and apparently no one raised the contention that omission of the second sentence rendered the instruction defective.
Additionally in that ease, which involved a nighttime collision of two vehicles at an intersection where visibility was limited by hedges, trees and parked cars, defendant had admitted seeing the lights of plaintiff’s vehicle. Such a fact situation differs materially from that in the present case, in *547which the driver testified without contradiction that he was completely unaware of the little child’s presence.
Since in the instant case plaintiffs ’ requested instruction was inaccurate and misleading, it is my view that failure to give it was not error and provides no ground for reversal on appeal.
McComb, J., concurred.