It is my conclusion that the evidence did not justify the giving of respondents ’ instruction upon the doctrine of assumption of risk (No. 12) or the two others given in connection therewith upon the law of contributory negligence (Nos. 14 and 18) embodying respondents’ theory that appellant’s age and physical condition served as contributing causes to the happening of the accident. Such conclusion is based upon the following uncontroverted facts: that the clerk Don Cissi, collided with appellant, and that the impact regardless of the force thereof was the proximate cause of appellant’s fall; that appellant was at the time a business invitee upon the premises, and when struck was standing still, in the main aisle, which was ten feet wide, waiting to be served as a customer; that she was standing approximately three feet from said clerk, and although other parts of the market were quite well filled with shoppers, there was but one other person besides appellant and the clerk in the aisle in which she was standing when the clerk collided with her. The instructions above referred to were, therefore, in my opinion, erroneous. However, it is held in. Brandes v. Bucker-Fuller Desk Co., 102 Cal. App. 221 [282 Pac. 1009], and other cases cited therein, that even though the evidence in a case be insufficient to sustain the defense to which instructions are directed, a reversal is not warranted on that ground when the evidence as to other defenses which are pleaded is sufficient to sustain the verdict; and in the present case respondents pleaded and they mainly relied upon the additional defense that the accident was unavoidable and did not result from a want of exercise of ordinary care on the part of the clerk; and apparently the circumstances attending the accident are such as to sustain the implied finding of the jury on that issue. It would seem to follow, therefore, that the giving of the irrelevant instructions did not constitute prejudicial error; and upon that ground I concur in the judgment of affirmance.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 21,1938.