(concurring).
The situation presented by the record in the case at bar is somewhat unique. Upon supplemental briefs requested by the court the appellee contends that, inasmuch as the case was tried below upon the theory that the San Francisco Ordinance No. 7691, introduced in evidence by appellant, fixed the duties of the parties at the time and place of the accident, the question of whether or not that ordinance was valid or void by reason of its conflict with the state law (section 131½, California Motor Vehicle Act), referred to in the main opinion, is not material on this appeal. There is merit in this contention. Sommer v. Martin, 55 Cal.App. 603, 609, 204 P. 33; Halaminsky v. Nelson, 5 Cal.App.(2d) 287, 288, 42 P.(2d) 676. The difficulty is in applying the trial theory to the case at bar. It is true that both parties claimed in the lower court that the ordinance was controlling and that both parties argued the case in this court upon that theory. The difference between the parties there and here is as to a proper interpretation of the ordinance. The appellant contends that under the ordinance the pedestrian was not entitled to be in the roadway between the safety zone and the curb except where it was necessary, and that, as there was no showing in the trial court that it was necessary for the pedestrian to pass across this strip, its motion for a directed verdict should have been granted. On the other hand, the appellee contended in the lower court, and contends here, that he had a right to be in this strip in the roadway equal to that of the motorcycle. As pointed out in the main opinion, the ordinance which was read to the jury as a part of the charge provided that “it shall be unlawful for any person to be in any roadway other than in a safety zone or crosswalk, provided that this provision shall not be construed to prevent the necessary use of the roadway by a pedestrian.” Under this provision it is clear that the only justification which the pedestrian could offer for being in this strip between the safety zone and the curb was that it was necessary. Under this provision of the ordinance, literally construed, and under the instruction that a violation of the ordinance by the plaintiff was contributory negligence, he was not entitled to recover. It is for this literal construction of the ordinance that the appellant here contends. The trial court, however, after giving the *998above-quoted terms of the ordinance as a part of his charge to the jury, gave the other instruction in regard to the relative rights of the pedestrian and the motor vehicle in the strip between the safety zone and the curb which is quoted in the main opinion wherein the jury were instructed that the pedestrian was not thereby excluded from the strip between the curb and the safety zone, but was as much entitled to its use as drivers of vehicles. These instructions are inconsistent and represent the conflicting views of the parties as to the applicable law which are urged upon this court. The giving of such conflicting instructions is error, and requires a reversal, unless it can be said that no prejudice resulted therefrom. Deserant v. Cerillos Coal R. Co., 178 U.S. 409, 20 S.Ct 967, 44 L.Ed. 1127; Elmore v. Lassen County et al. (Cal.App.) 51 P.(2d) 481; Randall’s Instructions to Juries, p. 766, § 427; Branson’s Instructions to Juries, § 89; 64 C.J. 671, § 600, and cases cited.
It is evident that the jury did not act upon the literal interpretation o'f the ordinance which made it unlawful for the pedestrian to be in the strip unless necessary, as in such a case its verdict would have been for the defendant. Consequently, we must inquire whether or not the other instruction, above mentioned, on that subject, was a correct statement of the law which should govern the parties at the point of the accident. In an attempt to solve this difficulty we called the attention of the parties to the provisions of section 131% of the Motor Vehicle Act of California, for, if the Motor Vehicle Act controlled and rendered the ordinance void because in conflict or inconsistent therewith, we desired the assistance of the attorneys in determining its effect upon the case at bar. This question had not been argued. If the ordinance was not void, then it is clear that in determining the rights of the pedestrian in the street it is necessary to consider the interpretation of the ordinance in the light-of the provisions of the Motor Vehicle Act, of which we took judicial notice, and also in the light of the inherent rights of the pedestrians and of the legislative power of the City and County of San Francisco in controlling street traffic. The parties in their supplemental briefs have conceded that the question is one of great doubt, and neither party has undertaken to resolve that doubt. Appellant' has contented itself with advancing the proposition that under either the state law or municipal ordinance the instruction that a pedestrian had an equal right with the motor vehicle in the strip between the safety zone and the curb was erroneous.
As pointed out in the main opinion, the latter instruction was erroneous in either view, as the appellant contends. The appellee contends that under the ordinance the latter instruction in question was correct. In any view I do not think that appellee’s position can be maintained. If the decision of the California District Court of Appeals of the Second District in Croxall v. Broadway Dept. Store, Inc., 127 Cal.App. 153, 156, 15 P.(2d) 546, was an interpretation of a Los Angeles city ordinance on all fours with the San Francisco ordinance, I would follow it, although not binding upon us, because of the peculiar local problems involved in the interpretation, but, as pointed out by Judge GARRECHT, there is a notable difference in the terms of the two ordinances which destroys the authoritative effect of the decision in Croxall v. Broadway Dept. Store, Inc., supra. For this reason, and because of conflicting instructions as to the effect of the ordinance, the judgment must be reversed.
I do not agree, however, with the main opinion in holding that it was error to instruct the jury as to the standard brakes required by the state law. The appellant’s witness testified in effect that the motor vehicle was equipped with brakes which complied with the state law. There was no evidence to the contrary other than the circumstances surrounding the incident, and the appellee does not rely upon any claim of negligence with relation to the brakes. His claim is that the reason the appellant’s employe could not stop the motorcycle was because it was going too fast. I think under these circumstances the jury was entitled to know the space in which a motorcycle properly equipped with standard brakes could be stopped. The fact that there was 2.68 per cent, grade and the street was rough was a matter for which the jury could make an appropriate allowance in determining whether or not the motorcycle was traveling at too great a speed.
I concur in the reversal of the judgment for the first reason, and upon the ground stated by Judge GARRECHT, and for the further reasons I have stated.