Although as held by the majority opinion the evidence may be sufficient to support the implied findings of the jury that defendant was not negligent and that negligence of the driver Lund was the sole proximate cause of the accident, yet there was substantial evidence tending to show negligence on the part of the defendant, which would have supported findings in plaintiffs’ favor. Under the particular circumstances of the occurrence of the accident, I do not believe that the jury was adequately or correctly instructed, which deficiency, together with improper and wholly uncalled for remarks of the trial judge, resulted in such prejudice as to require in my opinion, a reversal of the judgment.
The record discloses that the intersection of Redondo and San Vicente Boulevards is a heavily traveled one, and there was testimony that defendant’s electric ear which had no passengers and was on its way to the ear house came into the intersection at, approximately 35 miles per hour. The impact carried the Chevrolet sedan in which deceased was riding 132 feet. Mr. Lund who was driving the automobile heard neither bell nor whistle sounding at any time before the accident. His testimony was supported by the testimony of Mr. Bean, a witness who was driving alongside the streetcar as it approached the intersection. Mr. Bean further testified that *300the streetcar did not slow down until after the collision. One other witness also testified that she heard no whistle. The wigwag device is “cut in" so as when working properly to start swinging and ringing a bell when a streetcar from the east going west is approximately 1,927 feet from the wigwag at Bedondo Boulevard. Mr. Lund testified that when he was about 160 feet to 200 feet from Bedondo he saw the edge of the wigwag; and it was not oscillating, nor ringing. Defendant’s motorman testified he saw the Lund automobile come to a stop at Bedondo Boulevard when he was about 300 feet from the intersection and did not see it again until the automobile was “practically in front of his car,” although he also testified that he was looking for traffic during at least the last 100 feet before reaching the intersection. Mr. Lund, after making a boulevard stop, started his car in low gear, shifted to second gear, and was traveling slowly, at a rate of about 8 or 10 miles per hour across the tracks at the time of the collision. He had proceeded about 32 or 33 feet from the southernmost boundary of the right of way when struck. He testified that he did not again look east, the direction from which the "electric car approached after turning right, onto Bedondo Boulevard.
In view of the foregoing testimony which creates a sharp conflict in the evidence concerning the conduct of defendant’s motorman, and taking into consideration the prominent part played by Mr. Lund in the occurrence of events leading up to the accident, together with the inferences of negligence that such conduct may have created in the minds of the jury, it became particularly important that the jury be fully and clearly instructed in regard to the law of imputed negligence. This, the instructions of the trial judge fail to do. The right of the plaintiffs to recover, unaffected by the conduct of Mr. Lund, which was only inferentially covered by the instructions, was as to the jurors in all probability wholly offset by the emphasis placed upon the duty of care incumbent upon Mr. Lund to take in approaching railroad tracks, and the detailed circumstances under which he might be deemed guilty of negligence. And while it is correct to say that if the accident was caused solely as the result of negligence on his part, there could be no recovery, yet repeated emphasis upon his conduct could not help but detract attention from the main issue of whether or not there was negligence on the part of the defendant which would entitle plaintiffs to judgment if proxi*301mately contributing to the accident with or without concurring negligence of Mr. Lund.
The situation is very close to that which faced the court in Krupp v. Los Angeles Ry. Corp. (1943), 57 Cal.App.2d 695 [135 P.2d 424], where in reversing a judgment for defendant it was pointed out that, “The laymen constituting the jury were not aided in their determination of the question of negligence of defendants by an elaborate statement of the rights and duties of someone not a party to the litigation together with the admonition that if the conduct of such third party was the sole cause of plaintiffs’ injuries the verdict should be for defendants. ’ ’ If the defendant was entitled to this type of instruction, no less were the plaintiffs entitled to have the jury clearly informed in a tenor consonant with such instructions that any negligence of Mr. Lund, the driver of the automobile, could not be imputed to them.
In addition to the instructions in all instances being made in the most favorable light to defendant’s case, and at times being prejudicial to plaintiffs, it appears upon the face of the record that the trial judge throughout the trial maintained an attitude antagonistic to the presentation of plaintiffs’ case and freely and out of turn made remarks in the presence of the jury, in the light of which, I am convinced that the plaintiffs did not have a fair trial. Nine such instances are assigned as error on behalf of appellants. The majority opinion avoids a consideration of these remarks, largely upon the ground that no objection or exception on behalf of the plaintiffs, the 1, 3, and 5 year old children of the deceased Mrs. Lund, was taken at the trial. It is plain, however, that such objection would have availed nothing. This is shown by the court’s refusal to give plaintiffs’ requested instruction, “. . . that if the judge has said or done anything which has suggested to you that he is inclined to favor the claims or position of either party, you will not suffer yourself to be influenced by such suggestion,” and that “I have not expressed, nor intended to express, nor have I intimated nor intended to intimate, any opinion as to what witnesses are, or- are not worthy of credence; what facts are, or are not established; or what inferences should be drawn from the evidence adduced. If any expression of mine has seemed to indicate an opinion relating to any of these matters, I instruct you to disregard it. ’ ’ Furthermore, both of the authorities cited in the majority opinion *302recognize that where there has been a persistent course of misconduct on the part of the trial judge, or where the remarks are of such character that the prejudicial effect could not be cured by subsequent action of the trial court, the strict rule does not apply. (Hughes v. Hartman, 206 Cal. 199, 203 [273 P. 560]; Karwoski v. Grant, 30 Cal.App.2d 171, 178-179 [85 P.2d 944].)
Some of the prejudicial misconduct, to which I refer, occurred when plaintiffs’ counsel sought to impeach defendant’s witnesses by reading inconsistent statements made by them, taken from the transcripts of testimony of a previous trial in this same action and at the coroner's inquest. The trial judge, while allowing some of’these statements in evidence, preceded the reading thereof, with his opinion, expressed in the presence and hearing of the jury, that he could not see that it was impeaching, and at one time went so far as to remark, “Well, if you think that is impeachment ... I guess the jury can take care of that,” and at another time after the witness Mrs. Stuhr had placed the Lund automobile at one automobile length from the southernmost rail and the street car 75 feet to 100 feet away, counsel for plaintiff was allowed to read her testimony at the former trial where she placed the electric car 130 feet away and the automobile on the tracks. This was a material difference bearing upon the issues of fault and the speed and care with which the electric car was being driven, but whatever weight it might have had in the minds of the jury as impeaching testimony or upon the credibility of the witness was completely nullified by the following question asked Mrs. Stuhr by the court: “I do not suppose, Mrs. Stuhr, that you took a tape line and measured the distance that you testified to?” This question was asked just before Mr. Young, one of the counsel for plaintiffs, started to read from the transcript. It is obvious that the practical effect of this question was to minimize if not destroy the weight of the impeaching testimony so that the jury would not give effect to it. If there was any inconsistency in the testimony to submit to the jury, as the transcript discloses there was, it became a matter for the jury to determine, how far the inconsistencies went toward weakening the later testimony, or impairing the credibility of the witnesses. (Abbott v. Coronado Beach Co., 55 Cal.App. 179 [203 P. 145]; People v. Vogel, 36 Cal.App. 216 [171 P. *303978]; Vietti v. Hines, 48 Cal.App. 266, 275 [192 P. 80]; Firth v. Southern Pacific Co., 44 Cal.App. 511 [186 P. 815].)
In Abbott v. Coronado Beach Co., 55 Cal.App. 179 [203 P. 145], it was sought to impeach a witness’s testimony by showing that it was inconsistent with statements theretofore made by her at another trial. It appears that the trial judge referring to the testimony which she had formerly given, stated in the presence and hearing of the jury: “I hardly think there is such a conflict as to impeach the testimony given here.” As to this the appellate court said, “That this was gross error admits of no controversy. Defendant sought to impeach the witness in the method prescribed by sections 2051 and 2052 of the Code of Civil Procedure, and the question as to whether there was a conflict and, if there was, the extent to which the credibility of the witness was affected, was one solely and alone for the jury. (People v. Wallace, 89 Cal. 158 [26 P. 650] ; Schneider v. Market St. Ry. Co., 134 Cal. 482 [66 P. 734].) In People v. Vogel, 36 Cal.App. 216 [171 P. 978], the trial judge was guilty of a like act of misconduct by stating in the presence of the jury: ‘The evidence in the transcript which has been produced, I do not consider as impeachment.’ In referring to such statement so made by the judge this court said: ‘His action in that regard was uncalled for. . . . His statement was distinctly prejudicial to the rights of the appellant.’ ”
As has been pointed out a number of times (and in cases appealed from the particular department of the superior court presided over by this same trial judge), a trial judge, by reason of the high and authoritative position occupied by him, is an influential person with the layman juror, who too often is ready to accept the judge’s views and indication of opinion as his own without further consideration of the matter for himself, therefore the trial judge should be extremely careful so as not to exert his influence to the unfair advantage of one party and to the detriment of the other. (People v. Mahoney, 201 Cal. 618, 626-627 [258 P. 607]; People v. Williams, 55 Cal.App.2d 696 [131 P.2d 851]; Anderson v. Mothershead, 19 Cal.App.2d 97 [64 P.2d 995]; People v. Earl, 10 Cal.App.2d 163 [51 P.2d 147] ; People v. Johnson, 11 Cal. App.2d 22 [52 P.2d 964].) This was a close case and the statements made by the trial court may well have been the determining factor.
*304The majority opinion brushes aside appellants’ charge of misconduct of the trial judge with the statement that “We have reviewed the record in its entirety, including the statements complained of, and do not perceive that they could have influenced the jury to plaintiffs' prejudice.” But my experience in the trial of jury cases leads me to exactly the opposite conclusion. In my opinion the misconduct of the trial judge in this case was the controlling factor in influencing the jury to return a verdict in favor of the defendant. To hold that plaintiffs cannot now raise the question "of misconduct because no objections were made to the remarks of the trial court during the trial is requiring plaintiffs to do an obviously idle act, because it is obvious from a study of the record that had plaintiffs’ counsel objected to the facetious and caustic remarks of the trial judge he would simply have invited further abuse and intimidation.
I think it is time that this court should assume a more realistic approach to problems of this character and recognize the fact that there are trial judges who are temperamentally unfit for the trial of certain types of cases at least, and when a record of the character of the one now before us is presented to this court, and an obvious miscarriage of justice has resulted, the judgment should be reversed on the sole ground of the misconduct of the trial judge, to the end that such miscarriages of justice may not be repeated, and that it may be said in truth “that a court is a place where justice is judicially administered. ’ ’
In my opinion the judgment should be reversed.
Appellants’ petition for a rehearing was denied December 21, 1944. Carter, J., voted for a rehearing.