I concur in the conclusion of Justice Carter that as there was substantial evidence from which negligence of Hobbie and the lack of contributory negligence of H. L. Anthony might be inferred, the trial court improperly directed the jury to return a verdict in favor of the defendant. But I cannot agree with the holding that, under these circumstances, the “plaintiffs are entitled to the aid of the presumption that decedent used due care for his own concerns.”
The disputable presumption stated in section 1963, subdivision 4, of the Code of Civil Procedure, is: “That a person takes ordinary care of his own concerns.” A plaintiff may not call this statute to his aid and have the benefit of an instruction embodying its provisions upon the ground that the evidence presented by him, as in this case, is not wholly irreconcilable with the presumed fact. When the evidence *821of the plaintiff discloses the circumstances concerning the happening of the accident, the presumption that the person killed or injured used ordinary care is dispelled and it is error to instruct the jury in regard to the code section. (Speck v. Sarver, 20 Cal.2d 585 [128 P.2d 16]; Paulsen v. McDuffie, 4 Cal.2d 111 [47 P.2d 709]; Rogers v. Interstate Transit Co., 212 Cal. 36 [297 P. 884].)
The plaintiffs who are prosecuting the present appeal are not bound by the testimony of Hobbie given under section 2055 of the Code of Civil Procedure, but there was other evidence produced by them from which the jury reasonably could have inferred that H. L. Anthony was guilty of negligence at the time of the fatal accident. F. W. Muller, a witness for the plaintiff, testified that just before the accident, the Chevrolet driven by Hobbie was then traveling in the proper lane of traffic. Muller heard a thud, and saw Anthony thrown into the air. According to a state traffic officer also called to testify for the plaintiffs, immediately after the accident Hobbie declared that when he saw Anthony the man was directly in front of his automobile. Other testimony of the officer relating to the physical facts at the scene of the collision tends to prove that the Chevrolet was on the right hand side of the road, and collided with Anthony while he was standing directly in its lane of travel.
These facts, to some extent, show the situation and acts of Anthony immediately before he was struck by the Hobbie car and bring the case within the rule of Speck v. Sarver, supra, where a majority of my associates, after observing that “the jury was justified in making its implied finding that plaintiffs were free from contributory negligence,” held that the giving of an instruction stating the presumption of due care was error. It was said that although Speck’s evidence was not wholly irreconcilable with the fact presumed, “such an instruction . . . should not be given where the evidence introduced by the plaintiff discloses the acts and conduct of the injured party immediately prior to or at the time in question” (pp. 587-588).
For these reasons, as I read the record, the opinion of my associates should not include the declaration that the ease presented by the plaintiffs was a proper one for the application of the presumption of due care.