The statement of the law set forth in the forepart of the above opinion relating to the power of appellate courts in dealing with evidentiary matters is, of course, not questioned; but the law is equally well settled, and has been so for a great many years, that if after examining the record on appeal it is found to be entirely barren of any substantial evidence supporting the verdict, or the verdict is clearly contrary to the uncontradicted facts —in other words, if the record shows that the jury has simply “run away” with the ease—it is not only within the power of the appellate court, but it becomes its duty to order a reversal.
Following the granting of the rehearing in the present case, the appeal was reargued on the merits, and additional briefs were filed. The basic ground urged for rehearing was that the decision rendered was founded on an erroneous factual premise. In so contending appellant, on page 2 of its peti*518tion for rehearing, states in part: “This court has failed to give consideration to the facts testified to by the witnesses and in place thereof has drawn inferences which have no support in the record. In fact, some of the so-called ‘inferences’ are drawn in spite of the express testimony of the witnesses to the contrary.” Appellant further asserted in substance that in reviewing the case on the merits this court failed to give proper consideration to evidence relating to the particular conditions and circumstances present at the time and place of the happening of the accident. The petition then went on to specify some seven instances wherein it was claimed this court had overlooked or erroneously construed vital portions of the evidence, or had drawn inferences having no evidentiary support.
After having reconsidered the evidence and analyzed the points made by appellant against the soundness of the former opinion, which the majority members of the court have now adopted verbatim (with two pages added at the beginning thereof), it is my firm conviction that the present decision rests on an erroneous conception of the evidence, and that, as appellant contends, the uncontradicted facts of the case show beyond question that plaintiff’s injuries resulted solely from his own carelessness in attempting to operate his car across the intersection, under the existing conditions, in clear violation of special instructions theretofore given him by the officials of his own company; furthermore, that as a matter of law the evidence utterly fails to show any negligent act in the operation of the Powell Street car.
As set forth in the main opinion, the accident happened about 8 o’clock at night at the intersection of 0’Farrell and Powell Streets where the double tracks of the O’Farrell Street line, running easterly and westerly, cross the double tracks of the Powell Street line at right angles. The O’Farrell Street car was outbound, that is, it was traveling westerly along the northerly track on O’Farrell Street. Two officials of the O’Farrell Street line testified positively, without contradiction, that it was an unwritten rule of that company, and that plaintiff had been specifically instructed, that if a southbound Powell Street car crossed in front of the approaching O’Farrell Street car at that intersection, the 0’Farrell Street car should not attempt to cross in back of the Powell Street car unless the latter was at least three car lengths below the southerly crown of the intersection; and that in case the Powell Street car stopped within that distance from the crown *519of the intersection, the operator of the O’Farrell Street car was to be sure and check that the Powell Street cable was out of the grip before attempting to cross. One of the witnesses so testifying was Jules J. DeMoor, the superintendent of the O’Farrell Street line. The pertinent portions of his testimony were as follows: “Q. In addition to the written rule which I just read to you, Mr. DeMoor, did you have any other rules of the California Street Railroad [the O’Farrell Street line] with relation to the operation of those O’Farrell Street cars at Powell Street, upon which the employees were advised and instructed? A. Yes, sir, we had the rule that is in the book concerning the northbound ear, and we also have-our men are instructed in regard to the southbound. . . . Q. Did you have such a rule in addition to the one that I have just read? A. Yes, we have. The men are so instructed-it is not a written rule. The men are instructed by our instructors, that the Powell Street car proceeding south, and our car proceeding west, if a Powell Street car crosses in front of our car at that point, to be sure and not cross in back of that car unless that ear is at least three car lengths below the crown, and also in case of a car stopping to be sure and check that the cable is out the grip before crossing. ... Q. Do you give your employees special instructions as to what to do in the event a Powell Street car, southbound, is stopped anywhere near that intersection? . . . A. Yes, sir. All our men are instructed that in cases of a ear being stopped, the southbound car being stopped and not being at least three car lengths, or 100 feet below the crown, not to cross in back of that car until they make sure that this man has thrown the cable out. Mr. Miller. Q. When you refer to throwing the cable out you mean releasing the cable from the grip and dropping it? A. Dropping it, that’s right.” The other witness was Thomas Fitzmaurice, who at the time of the accident and for some seventeen years prior thereto had been in the employ of the 0 ’Farrell Street line, part of which time he acted in the capacity of instructor for gripmen. He testified that in May, 1941, he instructed plaintiff as to the manner in which he should operate his ear over the Powell Street intersection. The substance of his testimony was as follows: That he gave plaintiff instructions that when operating west on O’Farrell Street and if a Powell Street car was stopped south of O'Farrell not to cross over back of the Powell Street car unless he made sure that the Powell *520Street car had dropped the cable out of his grip, because it was considered dangerous; that he told plaintiff that when the cable was in the Powell Street grip it caused the Powell cable to run high enough that he could hit it with his grip in crossing over, and if a Powell Street car was standing there not to cross over until he got a signal from the Powell Street gripman that it was all right to proceed, that he had ' dropped his cable out. Continuing, his testimony was as follows: “Now, your instructions with reference to- that 3rou gave to Mr. Bryant with reference to the distance that the Powell Street car should be before it was safe to go across-will you tell us what those instructions were in that regard? A. Well, I instructed him to wait until the Powell Street car got three or four car lengths over the crown. Q. Three or four ear lengths over the crown? A. Three or four ear lengths over the crown before he started his car. Q. Now, when a ear is standing there in that area, that is, a southbound Powell Street car is standing somewhere in the area of that south cross-walk there of 0’Farrell Street, have you, as a gripman standing on your platform on the westbound car, a way of determining whether that gripman has dropped the cable. A. If the car isn’t crowded you can see when he has thrown the lever over forward and you know that he has dropped the cable out; if the lever is standing straight up, he has got the rope in the cable [grip], Q. And can you see that from your position in the car? A. Yes. Q. Did you give Mr. Bryant instruction as to how he should act if a car was crowded, and he couldn’t see the lever? A. I gave him instructions to ring the gong and get a signal back from the gripman so that he was satisfied it was safe to get across.”
The Powell Street car was southbound, but when the rear end of the car reached a point just south of the southerly track of the O’Farrell Street line it was unable to proceed further because there was an automobile on the track which the driver was attempting to park; and when the Powell Street car stopped the gripman thereof did not drop the cable from the grip, but released the grip on the cable so as to allow the cable to run freely through the grip without moving the car. When the track was clear ahead, the gripman tightened the grip on the cable and the car started forward, but it had proceeded no farther than just over the crown of the 0 ’Farrell Street intersection when plaintiff started his car across the intersection, with the result that his grip struck the cross *521cable of the Powell Street line, snapping the cable in two and throwing the lever of the O’Farrell Street car back violently, striking plaintiff in the pit of the stomach and rendering him unconscious. Obviously, in thus attempting to cross the intersection while the Powell Street car was within a few feet of the southerly boundary of the 0 ’Farrell Street intersection, plaintiff clearly violated the rule of his own company and the specific instructions theretofore given him as to the manner in which he should operate his car over that particular intersection; and by so doing he became solely responsible for the injuries he received. His only excuse for having proceeded across as he did was that he did not see the Powell Street car; but, according to his own testimony, the reason he did not see it was that in violation of his instructions he did not look for it. In this respect he testified as follows; “Q. Were you looking in the direction you were traveling, when the thing happened? A. Sure. Q. Did you see the Market Street Bailway car at all before the accident happened? A. I don’t remember about seeing it. Q. Do you recall seeing it in the vicinity there, of Powell and O’Farrell Streets. A. No, sir. Q.-as you approached that corner ? A. No, sir. Q. So you cannot tell us anything about that car at all, Mr. Bryant ? A. No, nothing at all. Q. As to where it was, or when it had crossed your tracks? A. No, nothing at all. Q. Or whether it had even crossed your tracks, is that it ? A. No. Q. Is that your testimony ? A. That is right. Q. Was there any car there as you proceeded across O’Farrell and Powell? A. There wasn’t any ear in the crossing; that is all I looked out for. Q. That is, there was no car on your car tracks, is that what you mean? A. That is right. Q. Your track was clear? A. Yes. Q. Whether there was a car just immediately clear of your tracks or not, you don’t know? A. There was no car on the tracks, that is.all I can say. . . . Q. You could proceed out O’Farrell Street without running into any street car ? A. That is right. Q. That is all you can say as to the position of the Powell Street car at the time this accident happened? A. Yes. . . . Q. Did you know when you started to cross that street that if the Powell Street car was holding onto the cable you would run into it? A. Yes, uh-huh. . . . Q. Were any lights burning on the Market Street Bailway car? A. I don’t know. Q. Did you pay any attention to the Market Street Bailway car at all? A. No.”
. In the main opinion it is stated: “The Powell car had *522stopped out of the intersection hut near the south curb line of 0 ’Farrell Street. ...” But this is manifestly an erroneous construction of the evidence, for the only testimony on the subject shows to the contrary. It shows that the car stopped on the southerly crown of the intersection with the rear end of the car only a few feet from the south rail of the eastbound 0 ’Farrell Street track. On this point the conductor of the Powell Street ear testified as follows: “Q. And did your car then proceed across O’Farrell Street? A. We did. Q. And how far did you proceed? A. Well, we proceeded to where the back end of the cable car would be approximately three or four, maybe five feet, from the eastbound O’Farrell tracks. Q. And at the time your car-what did your car do at that time? A. Well, we were forced to stop for an automobile that was endeavoring to park. . . . Q. Did you observe whether or not the car was, your car, was over the brow of the hill as it stopped, or where it was? A. Well, I would say that the front of the car might have been a little over the brow, but the trucks proper would be on the flat. Q. The trucks proper of the car would be on the flat ? A. On the flat, yes, sir. . . . Mr. Miller. Q. Mr. McWilliams, would you state again, please, where the rear of your car was with reference to the eastbound 0 ’Farrell Street tracks ? A. Approximately three to five feet from them, south of them.”
Again in the main opinion, as it is now written, it is stated: “We think that the evidence supports the implied finding of the jury that when the Powell Street car stopped it was over the intersection and standing on the down grade. The plaintiff testified that he saw no car in the intersection as he approached. That supports the reasonable inference that no ear was there.” In view of the positive testimony given by the plaintiff that he did not pay any attention to the Powell Street car, how can it fairly be said that such testmiony reasonably supports the inference that the Powell Street ear was not within the intersection ?
Finally, on this branch of the case it should be stated that according to plaintiff’s own testimony he knew that if a southbound Powell Street car was holding the cable while standing on or near the southerly boundary of the intersection, an O’Farrell Street car would not be able to cross the intersection without striking the Powell Street cable.
It is also my conclusion, as above indicated, that the evidence fails as a matter of law to establish any negligent act in the operation of the Powell Street car. It fails to show *523that any rule or custom was violated, but on the contrary shows that the gripman of the Powell Street car was following the proper railroad practice in acting as he did under the circumstances. Obviously the car could not proceed beyond the crown at the southerly boundary of the 0 ’Farrell Street intersection because the track was blocked by the automobile, and the testimony shows that it was necessary to hold the cable at the point where it stopped because otherwise it would have been necessary, in order to start the car forward, for the car crew to get out and push it over the crown of the intersection. In this connection, the gripman of the Powell Street ear testified that after he brought his car to a standstill he “clanged” the bell for two or three minutes to get the automobile out of the way; that as soon as the track was clear he tightened the grip on the cable to give the car a boost over the crown, and when the rear end of his car passed over the intersection boundary he dropped the cable, and that just as he was about to drop the cable the impact occurred. The only reasonable inference that can be drawn from these uncontradicted facts is that the 0 ’Farrell Street car started to cross the intersection about the time the Powell Street car started to move over the crown. In the main opinion as now written it is said that “If the car was over the brow of the hill when it stopped then there was no need to keep a loose grip on the cable. To do so obviously created a trap for any car traveling on O’Farrell Street at that intersection.” As already shown, however, the uncontradicted evidence proves that the car did not stop “over the brow of the hill.” It stopped on the brow of the hill and it was necessary to hold the cable loosely at that point so that it could be grasped tightly to start the car. It is perfectly true that an accident would be inevitable if an O’Farrell Street car attempted to cross the Powell Street intersection while a Powell Street car was stopped within a car’s length of the southerly boundary of the intersection and was holding the cable loosely. But certainly no such accident would occur if the gripmen of the O’Farrell Street line obeyed the plain instructions given to them by the officials of the O’Farrell Street company not to attempt to cross the intersection while a Powell Street car was within three car lengths of the southerly boundary of the intersection without first ascertaining definitely whether the Powell Street car was holding the cable.
I believe, also, that in the state of the evidence shown by *524the record herein it was prejudicial error, tor the reasons assigned in appellant’s briefs, to give the instruction set out in the main opinion in that unqualified form.
The judgment, in my opinion, should be reversed.
A petition for a rehearing was denied December 1, 1945. Knight, J., voted for a rehearing. Appellant’s petition for a hearing by the Supreme Court was denied December 20, 1945. Schauer, J., and Spence, J., voted for a hearing.