I dissent.
The majority opinion holds that various instructions given to the jury were not prejudicially erroneous. I cannot agree.
The same instruction on last clear chance that was given in *295Brandelius v. City & County of San Francisco, 47 Cal.2d 729 [306 P.2d 432], was given in this ease at plaintiff’s request but an addition thereto* was stricken by the court. The majority opinion now says as it did in the Brandelius ease that the instruction without the addition was incorrect and confusing; that therefore plaintiff cannot complain of it because it was given at his request and the addition thereto (not given) would have added to the confusion. I reiterate the comments in my dissent in the Brandelius case (47 Cal.2d 746) to the effect that the instruction without the addition was not erroneous nor confusing; that the addition was proper and should have been given. Even if the unmodified instruction was confusing the addition should have been given. It in effect told the jury that it could find actual knowledge by defendant of the boy’s perilous position if a reasonable person would have believed he was in a perilous position, that is, if the facts would justify an inference that defendant knew of the boy’s perilous position despite his protests to the contrary. In Selinsky v. Olsen, 38 Cal.2d 102, 105 [237 P.2d 645], this court pointed out that even though the defendant says he did not have such knowledge the facts may reasonably show that he did. We there stated: “The second factor is lacking, urges defendant, because there is no showing that defendant was aware of plaintiff’s perilous position or knew he could not escape therefrom. That depends upon the view one takes of the evidence. It is true that defendant testified that he did not see plaintiff’s car until he was directly behind it, when plaintiff drove his car into the line of traffic in front of him, and that plaintiff’s car was in motion at the time of the impact. Other evidence shows, however, that defendant was looking straight ahead as he approached plaintiff’s ear and his view was unobstructed. It may be inferred therefrom that he saw plaintiff’s motionless car extending into the line of traffic. . . . Under the evidence most favorable to plaintiff, defendant could have seen plaintiff’s car standing in the road ahead of him for a minute before the impact and thus could, by the exercise of ordinary care, have avoided the accident.” (Emphasis added.) Plaintiff was entitled to have the jury advised on this issue especially in this ease where, as in the Selinsky ease, defendant said he *296was watching the boy and his view was unobstructed. In Peterson v. Burkhalter, 38 Cal.2d 107, 111 [237 P.2d 977], we said: “Also relied upon for reversal of the judgment is the testimony of Burkhalter that when he first saw Peterson he was not aware of a possible collision. But the application of the doctrine of last clear chance is not dependent upon an admission by the defendant that he expected that there might be a collision. As stated in Cady v. Sanford, 57 Cal.App. 218, 226 [207 P. 45], ‘It was not necessary that appellant should actually know that an accident was inevitable if he failed to exercise care. It is enough if the circumstances of which he had knowledge were such as to convey to the mind of a reasonably prudent man a question as to whether respondent would be able to escape a collision.’
“Burkhalter compares his situation to that of the defendant in Johnson v. Southwestern Engineering Co., 41 Cal.App.2d 623 [107 P.2d 417]. There the rule of last clear chance was held to be inapplicable because of a lack of evidence showing knowledge by the defendant of the plaintiff’s danger. Johnson had fallen asleep while driving his automobile, and there was no evidence that the driver of the other car was aware of this fact. For that reason, it was held, the defendant did not know that Johnson was in a position of danger, and did not have the last clear chance to avoid the collision.
“Burkhalter knew that Peterson was oblivious to the impending collision, and he excuses his failure to do anything to avert the accident upon the ground that he had no reason to expect continuing negligence on the part of Peterson. However, there is ample evidence from which the jury could determine that a reasonably prudent man, knowing the facts of which Burkhalter was aware, should have foreseen that Peterson might not turn or stop his motor scooter. Under such circumstances, it was negligent for Burkhalter to proceed toward the intersection acting upon a contrary assumption.” (Emphasis added.) Similarly, in the instant case, defendant could be said to have known of the presence of a very young child on the curb especially in view of the rule that: “A greater degree of care is required of a driver towards children than towards adults. The care required is greater still when the driver knows that small children are at play in the immediate vicinity. This is so because their conduct is unpredictable. The driver must anticipate their thoughtlessness and impulsiveness. Their very presence is a warning requiring the exercise of care. While a driver in *297approaching a child upon a street or highway is not bound to guard against every possible contingency, yet where he sees a child in a place of danger, or might reasonably apprehend that if approached without warning the child would through fright or bewilderment place itself in danger, it is his duty to keep his car under such control as is reasonably necessary to avoid a collision. If he has knowledge of the presence of children in the immediate vicinity, he may be charged with negligence in injuring one of them, even though he did not see the injured child, particularly where the injury occurs near the child’s home or a school. A fortiori, the driver may be held responsible where he sees the child approaching the path of his vehicle.
“The driver may be liable under the doctrine of last clear chance for an injury to a child, even under the assumption that the child’s conduct amounted to contributory negligence, where he sees the child in the path of his vehicle in danger of being run over and realizes that the child is unaware of the approach of the vehicle.” (7 Cal.Jur.2d, Automobiles, § 271; see also 30 A.L.R.2d 5.) In Scandalis v. Jenny, 132 Cal.App. 307, 310 [22 P.2d 545], it was held that defendant was negligent as a matter of law where a child ran into the side of his ear, and on the issue of contributory negligence the court said: ‘ ‘ The next question is, was the plaintiff guilty of contributory negligence ? To this question there can be but one answer, ánd that is in the negative. Even if it were negligence for a child of three years of age to stand in or near the center of a city street and look down, apparently unaware of the approach of an automobile, we are unable to see that such negligence contributed proximately to the injury that came to Mm by reason of the negligence of the defendant in the manner hereinbefore stated. By the exercise of ordinary care defendant should have seen and realized that plaintiff was unaware of the approach of the automobile, and his failure so to do placed upon him the whole blame for the accident.” In Hilyar v. Union Ice Co., 45 Cal.2d 30, 36 [286 P.2d 21], quoting from Conroy v. Perez, 64 Cal.App.2d 217, 224 [148 P.2d 680] : “ ‘The presence of children is in itself a warning requiring the exercise of care for their safety. . . . Moreover, if the evidence shows that a driver has knowledge of the presence of children he may be held to have been responsible although it appears that he did not see the injured child in time to prevent the injury. In Freeland v. Jewel Tea Co., 118 Cal.App.2d 764, 769 [258 P.2d 1032], it *298was held that it is ordinarily necessary to exercise greater care for the protection and safety of young children than for adult persons possessing normal and mature faculties (Conroy v. Perez, supra, 64 Cal.App.2d 217, 224); that their conduct is unpredictable and one operating a motor vehicle should anticipate their thoughtlessness and impulsiveness (Shannon v. Central-Gaither U. Sch. Dist., supra, 133 Cal.App. 124 [23 P.2d 769]). It was also held that the presence of children is in itself a warning requiring the exercise of care for their safety.” (Emphasis added.)
Hence in the instant case defendant was bound to anticipate unpredictable action by the child who was playing along the curb. Knowing the child was there, and the likelihood of his going into the street, defendant had the duty to take precautions, but he took none. The added portion of the instruction requested by plaintiff should therefore have been given because it took into consideration the factors involved in a child’s presence on the street and what defendant was required to anticipate in regard thereto.
The next instruction given is also clearly erroneous.* Contrary to the statement in the majority opinion, this instruction advised the jury that the last clear chance doctrine was not applicable if plaintiff’s negligence continued up to the time of the impact. So interpreted it is conceded to be wrong; indeed the majority opinion says such instruction should not be given. The instruction states that the doctrine may apply “only” when plaintiff’s negligence has ceased; and where plaintiff’s negligence “continues” up to the time of the accident, he cannot recover because of his contributory negligence. The majority seeks to escape this interpretation on the assumption that the continuance of plaintiff’s negligence is said to cease if it is no longer the proximate cause of the accident. The proximate cause feature would only confuse the jury because, as pointed out in the majority opinion, it is fictional reasoning to say that the last clear chance is based on the theory that where applicable, the plaintiff’s negligence has *299ceased to be the proximate cause of the accident. Here the jury was told that if plaintiff's negligence ceased before the impact the doctrine applied as it was not then the proximate cause of the accident. No one should expect the jury to follow such intricate and finespun reasoning. To the jury the plaintiff is still negligent, he continues to be so and the jury would naturally so assume; his negligence would still be a cause of the accident to them even though the defendant could have avoided it by the exercise of ordinary care. But they are told that they may not mitigate such an anomalous situation by the application of the last clear chance doctrine. This is especially true in this case where we have a child involved and consideration must be given to defendant’s duty in respect to a child on the curb in close proximity to his moving truck. The jury would normally assume that the child’s actions would be negligent if he were an adult and his negligence continued up to the time of the accident and were one of the causes of the accident. Moreover, the instruction defining proximate cause informed the jury that a cause which produces injury, is proximate.* The jury was further instructed that “. . . if you further find that the negligence of both proximately caused the accident, then if you so find, your verdict must be for the defendants.” It is reasonable to suppose that the jury would conclude that conduct of the child helped produce the injury—was a proximate cause and the jury would not therefore apply the last clear chance doctrine under the instruction now discussed.
Likewise the instruction told the jury that defendant had a right to assume that the child would perform his duty and obey the law, and hence, if he did not anticipate such conduct by the child, there was no negligence. It is true, as stated by the majority, that thereafter the jury was instructed as to what conduct to expect from a child, but that instruction did not cure the one plaintiff attacks. The instructions are conflicting, as the jury was told in one breath that defendant need not anticipate that a child might act as an adult—reasonably and according to law—and in the next, that a child’s actions are not measured the same way *300as an adult’s. In the instructions with reference to the conduct of children the jury was not informed that defendant should “anticipate” unpredictable action by a child. The jury would be confused because, it would not know whether to apply the adult standard or child standard in evaluating defendant’s conduct, and this was the very essence of plaintiff’s case, that is, whether knowing that the child was playing at the curb, defendant took proper precautions, or could proceed with the assumption that the child would not run out into the street.
The error in the instruction now discussed was further emphasized by the giving of instructions on the duty of a pedestrian in crossing a street phrased in the terms of an adult pedestrian—that he must yield the right of way when not crossing in a crosswalk. This is also in conflict with the duty imposed upon the defendant to anticipate the conduct of a small child, and, in effect, negatives it.
Considering all of the foregoing instructions, it is evident that the jury was placed in a position where it could not apply the appropriate duty of defendant toward a child playing near the curb of a street nor measure the child’s duty under the circumstances. The instructions were irreconcilable. Defendant, knowing of the child’s presence, playing near the street, oblivious to defendant’s truck, also knew, or was bound to know, that the child was likely to enter the street, yet he did nothing to cope with such a contingency. He did not slow down his truck, come to a stop or sound his horn. Under these circumstances, the jury could have found, if properly instructed, that he had a last clear chance to avoid the accident but failed to avail himself of it.
The last clear chance doctrine like res ipsa loquitur was evolved by great liberal minded judges to ameliorate the rigor of the common law in its application to the law of negligence. (See, excellent article by Myron L. Garon, member of the Los Angeles Bar, entitled “Recent Developments in California’s Last Clear Chance Doctrine,” 40 Cal.L.Rev. 404.) It is my view that these doctrines should be applied liberally to the end that relief may be granted to those who suffer injuries as the result of the negligent conduct of others. The application of these doctrines has been greatly restricted by recent decisions of this court which indicate a marked conservative trend. (Rodabaugh v. Tekus, 39 Cal.2d 290 [246 P.2d 663] ; Doran v. City & County of San Francisco, 44 Cal.2d 477 [283 P.2d 1] ; Brandelius v. City & County of *301S. F., 47 Cal.2d 729 [306 P.2d 432] ; Leonard v. Watsonville Community Hospital, 47 Cal.2d 509 [305 P.2d 36]; Danner v. Atkins, 47 Cal.2d 327 [303 P.2d 724]; Barrera v. De La Torre, ante, p. 166 [308 P.2d 724], filed March 22, 1957.) Whether this conservative trend is in accord with public interest may be open to serious question. In my opinion it is more in keeping with the public interest that these doctrines be liberally applied by our courts.
I would therefore reverse the judgment.
The addition was: '1 That the (truck driver) had actual knowledge of (the boy’s) perilous situation, or that (the driver) hnew facts from which a reasonable person would have believed that (the boy) was in peril.”
" The Doctrine of Last Clear Chance is invoked to defeat the defense of contributory negligence only in a case when, after plaintiff’s negligence has put him into a position of danger, its work as an efficient agent of causation ceases, and it does not play a part in proximately causing the accident. When, on the other hand, a person’s negligence not only places him in a position of danger, but thereafter it or its effect continues, and as a proximately causing factor, brings about, or helps to bring about, the accident, then the law of contributory negligence applies, and such person may not recover.”
'The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. It is the efficient cause, the one that necessarily sets in operation the factors that accomplish the injury. It may operate directly or through intermediate agencies or through conditions created by such agencies.”