I dissent.
The majority of this court reverses a judgment for plaintiff for personal injuries suffered as the result of a dangerous *146and defective condition of defendant city’s street solely upon the ground that a stipulation was improperly admitted in evidence, or perhaps more accurately stated, that a purported stipulation was not such because it was not agreed to by defendant. The basic fallacy in that holding is that the record shows that defendant did agree to (or it must be assumed it did) the facts contained in the stipulation, and its only objection or lack of assent was to the admissibility in evidence of those facts; or in other words that the facts stated in the stipulation were not admissible in evidence.
It will be noted from the majority opinion that the stipulation had to do with matters within the knowledge of James Kincaid, the city superintendent of streets, namely, the instructions, rules or practice of the city with regard to the repair of all defects in the streets of over one-half inch in depth. The first place in the record that Kincaid comes into the picture is near the close of plaintiff’s case. Plaintiff’s counsel stated that he would like to "call” Kincaid to the witness stand. To the court’s inquiry of whether he was present there was no response. In view of that state of affairs plaintiff’s counsel stated that he wanted "to call a man [clearly referring to Kincaid] whose duty it was to inspect any repairing of the sidewalk.” To the court’s query of whether he had another witness he could "put on” at that time (that is, that such was necessary for Kincaid was not present), plaintiff answered in the affirmative and called another witness to the stand. After that witness testified the record is silent as to what occurred. It merely appears that counsel was called to the bench out of the hearing of the jury and the court without ado recited the stipulation. Clearly there must have been a preliminary discussion between counsel and the court, and in the absence of the nature thereof we must assume that it followed the usual and ordinary course, that is, that there was no necessity of calling Kincaid as a witness for there was no dispute as to what his testimony would be with reference to the practice dr rule of the city in regard to repairing its streets; the only question would be the admissibility of his testimony. Not only should we make that assumption but it is borne out by the previous unavailing calling of Kincaid, defendant’s failure to call Kincaid to testify differently, and the jury instruction offered by defendant to the effect that the fact the city "may have adopted a standard of conduct with regard to defects in sidewalks which should be repaired, is not to be taken, as evidence by you that said defects necessarily consti*147tute dangerous and defective conditions which would render the City liable in damages in event of accidents occurring at the location of such defects. ’ ’ The instruction clearly indicates defendant’s assumption that while the facts of the existence of the rule were true, yet it does not necessarily show a dangerous condition. That is undoubtedly the law, and it shows that the only thing with which defendant was concerned was the admissibility of such a rule in evidence. It had been held admissible over its objection and it desired to have the true character of its value as evidence explained to the jury.
The objections to the stipulation both at the time it was stated by the court out of the presence of the jury and when it was read to them by the reporter, went only to the admissibility of the rule, not the fact of its existence. At first defendant’s counsel stated that he objected^ “to the introduction of any evidence on the ground that it is incompetent, irrelevant and immaterial and doesn’t tend to show whether or not this was a dangerous or defective condition-, is merely a stamdard set up to prevent further deterioration of the street and was not to be taken as an indication in any manner that we believed it to be a dangerous or defective condition, but was merely a precautionary measure that has nothing to do under the law to set up any standard other than is defined in the law itself. It does not prove or disprove any of the issues involved in this case.” All of the foregoing argument goes solely to the issue of whether the rule was for the purpose of preventing a deterioration of the streets or for the safety of pedestrians. That was a pure legal question relating to its admissibility. On its face the rule does not purport to be limited to preservation of the streets. It was broad enough to embrace both purposes. If counsel believed that the rule was so limited it was incumbent on him to establish that claim. All the objections of counsel to the stipulation are along the same line. None of them questions the existence of the rule. They are solely concerned with its purpose and on that basis alone the claim of inadmissibility is made. Certainly it is manifest that the trial court and opposing counsel understood defendant’s objection as being no more comprehensive than that the evidence was not admissible. If plaintiff’s counsel had not been so misled he could have called Kincaid and had him testify.
On the issue of the admissibility of the rule, the majority opinion has nothing to say. It was undoubtedly admissible and I am satisfied with the following discussion and authorities presented on that subject in the decision by the District *148Court of Appeal in this case (83 A.C.A. 582 at pp. 590-592 [189 P.2d 62]): “Evidence may be given upon a trial of the act, declaration or omission of a party. (Code Civ. Proc., § 1870, subd. 2.) Any fact is admissible in evidence from which the facts in issue are logically inferable. (Code Civ. Proc., § 1870, subd. 15.) It is an elemental rule of evidence that the statements or conduct of a party tending to refute his position are admissible. Mr. Justice Holmes, in Texas P. R. Co. v. Behymer, 189 U.S. 468 [23 S.Ct. 622, 47 L.Ed. 905], said that: ‘What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not.’ Mr. Wigmore says that, ‘the regulations adopted by an employer for the conduct of a factory or a transportation system, may be some evidence of his belief as to the standard of care required, and thus of the negligent nature of an act violating those rules.’ (2 Wigmore on Evidence (3d ed.) § 282, p. 132.) Shearman and Redfield say that, ‘It has been said that “a violation of rules previously adopted by a defendant in reference to the safety of third persons has generally been admitted in evidence as tending to show negligence of the defendant’s disobedient servant for which the defendant is liable,” ’ citing King v. Interborough R. T. Co., 233 N.Y. 330, 333 [135 N.E. 519]. (3 Shearman and Redfield on Negligence, § 506, p. 1281.)
“Evidence of a custom of a defendant and its violation is held admissible as some evidence of negligence. Scott v. Gallot, 59 Cal.App.2d 421 [138 P.2d 685], was an action arising out of alleged negligence of the defendant. It was held that a motion for a new trial was properly granted because the court had erroneously stricken evidence introduced by the plaintiff of a custom of the defendant which it had violated. (See, also, Thomas v. Southern Pacific Co., 116 Cal.App. 126, 131 [2 P.2d 544]; Mace v. Watanabe, 31 Cal.App.2d 321, 323 [87 P.2d 893]; Burke v. John E. Marshall, Inc., 42 Cal.App.2d 195, 203 [108 P.2d 738].)
“An ordinance of a municipality prescribing rules and regulations for the conduct of its employees is admissible in evidence as an act or declaration of a party concerning a matter involved in the suit. (Jordan v. City of Lexington, 133 Miss. 440 [97 So. 758]; Hebenheimer v. City of St. Louis, 269 Mo. 92 [189 S.W. 1180]; McLeod v. City of Spokane, 26 Wash. 346 [67 P. 74]; City of Indianapolis v. Gaston, 58 Ind. 224; Smith v. City of Pella, 86 Iowa 236 [53 N.W. 226].)
*149“We are dealing here with rules and regulations of the party itself. They are admissible, as they are virtually admissions, in the language of the trial judge, ‘as to what was reasonably necessary for the safe maintenance of the street.’ (2 Wigmore on Evidence (3d ed.) §462, p. 501.)
“Appellant engages in an extended argument and citation of cases from other jurisdictions to the effect that rules and regulations of a railroad company for the conduct of its servants in the operation of its trains should not be admitted in evidence in this state. It says that even if such rules should be held admissible the principle should not be extended to rules and regulations of a municipal corporation for the conduct of its servant in the maintenance of its streets. Counsel apparently overlooked the recent case of Simon v. City and County of San Francisco, 79 Cal.App.2d 590 [180 P.2d 393], where the court stated (pp. 597, 598) : ‘Defendants argue that the rules of a carrier are not admissible and may not be considered on the issue of a carrier’s negligence where the injured party has no knowledge of the rules and did not rely upon them. That was undoubtedly the rule announced in Smellie v. Southern Pac. Co., 128 Cal.App. 567 [18 P.2d 97], by the District Court of Appeal, but, the Supreme Court, in denying a hearing in that case added the following comment (p. 583) : “Such denial, however, shall not be construed as an approval by this court of that portion of the opinion of the District Court of Appeal which holds that admission of evidence of the rules adopted by the defendant for the government of its business was incompetent and prejudicial.” In thus qualifying the appellate court opinion the Supreme Court undoubtedly had in mind its earlier decision in Gett v. Pacific Gas & Elec. Co., 192 Cal. 621 [221 P. 376]. In that case, the court, after referring to the action of the motorman of defendant’s streetcar in suddenly stopping his car in such manner as to blockade a cross-street stated (p. 625) : “. . . his act in so doing was in violation of an operating rule of the defendant, forbidding its employees to stop the cars so as to block cross-streets or crosswalks. The existence of this rule, of course, did not render its violation by defendant’s employees negligence per se, but it was a circumstance proper to be considered by the jury in determining whether or not they were negligent.”
“ ‘In the more recent case of Nelson v. Southern Pacific Co., 8 Cal.2d 648 [67 P.2d 682], the Supreme Court negatively reaffirmed the doctrine of the Gett case in the following language (p. 654): “It cannot be said that the exclusion of the *150respondent’s time table was erroneous. While the rules of operation are admissible (Gett v. Pacific Gas & Elec. Co., 192 Cal. 621 [221 P. 376], . . .), we fail to see the materiality of the time table to the situation under scrutiny.” It follows that the rules were admissible and that it was a question of fact for the jury and not a question of law for the court to determine whether the conduct of the motorman, under the circumstances, constituted negligence.’ (See 3 Shearman and Redfield on Negligence, § 481, p. 1202); Chicago & A. Ry. Co. v. Eaton, 194 Ill. 441 [62 N.E. 784, 88 Am.St.Rep. 161]; Stevens v. Boston Elevated Ry. Co., 184 Mass. 476 [69 N.E. 338] ; Bilodeau v. Fitchberg & L. St. Ry. Co., 236 Mass. 526 [128 N.E. 872]; McNeil v. New York, N. H. & H. R. Co., 282 Mass. 575 [185 N.E. 471].)”
Finally, even assuming it was error to admit the stipulation it was not prejudicial. The jury was fully instructed upon the correct standard with reference to defects in streets. For illustration it was advised: “A dangerous or defective condition, as denoted by the use of that term in these instructions means a condition in the sidewalk in question that would have caused it to be not reasonably safe for persons who, with ordinary care for their own safety, used said sidewalk, or might have used it for the purpose intended, or as expressly or impliedly invited, or as permitted by the controlling authority.
“A municipality is not bound to maintain its sidewalks in a condition to preclude the possibility of accident. It is not an insurer of the safety of the users of public sidewalks. The duty imposed by law upon the City is to exercise ordinary care to maintain its public sidewalks in a reasonably safe condition for their use in a proper manner. The City has the same right as an individual to assume that in using the sidewalk the public will use ordinary care and caution.
“A duty is imposed upon officers of a municipality, whose business requires them to inspect and repair sidewalks to exercise due care to discover defects which may be reasonably anticipated. ’ ’ It was given the general standard and it is not to be supposed that it adopted the ‘ ‘ % inch hole ’ ’ rule referred to in the stipulation.
As before stated, the record discloses that no objection was made by counsel for defendant to the facts stated in the stipulation. At no time did he state that he had not agreed or did not agree to stipulate to all of the facts contained in the stipulation as dictated by the trial judge to the reporter and read by the reporter to the jury. A reading of the objections and *151argument of counsel for defendant to the stipulation can leave no doubt but that counsel’s only objection to the stipulation was that it did not constitute competent evidence of defendant’s negligence because the instructions, rules or practice of the city with regard to the repair of defects in streets of over one-half inch in depth was not competent evidence that a hole of that depth created a dangerous and defective condition which would render the city liable to anyone injured thereby. Counsel’s position is made unquestionably clear in the following statements made at the time the stipulation was introduced in evidence: “Mr. Hayes: Well, I had better restate my position at this time. First, that the contents of the proposed stipulation with reference to the repairs of the damages as to sidewalks, are merely instructions to workmen, giving them some idea as to what types of holes, what to look for to indicate if sidewalks are beginning to deteriorate. They are not a set of rules or standards. Second, that the superintendent of streets has no authority to adopt a set of rules which would give, as a standard for any imposition or determination of the liability of the City, what holes may or may not be dangerous or defective. Third, that the City of Long Beach has the right to give instructions to its men to take preventive measures for the repair of its sidewalks which may be, or at a later date become, defective without determining that the hole constitutes dangerous or defective conditions or that there is anything about the hole at the time that the repair is made that it is a dangerous or defective condition.
“May I mix argument with objections? On the further ground it is incompetent, irrelevant and immaterial and does not tend to prove any of the issues in this case. It doesn’t tend to prove this particular spot or any other particular spot in the City of Long Beach was in a dangerous or defective condition, calls for a conclusion on the part of Mr. Kincaid or the parties who make the repairs. That states my position as well as the objections.” In view of the foregoing there is clearly no justification for the statements in the majority opinion to the effect that counsel for defendant did not agree to the facts stated in the stipulation and that the burden was on the plaintiff to prove counsel’s assent to such facts before the stipulation was introduced in evidence. Of course, it is obvious that there could be no stipulation of facts unless counsel for both sides assented thereto, and the discussion in the majority opinion in regard to the stipulation is talk about *152something which did not exist if the statements in the majority-opinion are correct.
It was certainly incumbent upon counsel for the defendant to in some maimer make known to the court and counsel for plaintiff that he did not agree to the truth of the facts stated by the court in the stipulation if any of those facts were not in accord with the truth, or at least in accord with what Kincaid would have testified to had he been called as a witness. I repeat again that at no time did counsel for defendant assert that any of the facts contained in the stipulation were untrue or that he did not agree to stipulate that if Kincaid were called as a witness he would testify to all of said facts.
In view of the situation as above narrated, there can be no question but that the stipulation as read by the trial judge to the reporter and reread by the reporter to the jury was agreed to by counsel for defendant, and in view of the rules of law which I have heretofore stated herein, there can be no question but that the stipulation was admissible in evidence.
Since the only ground stated in the majority opinion for the reversal of the judgment is that the court committed error in submitting to the jury a stipulation containing facts which were not agreed to by counsel for defendant, and since this ground finds no legal or factual basis in the record before us, the conclusion reached in the majority opinion is unsound.
It must necessarily follow that the judgment should be affirmed.
Sehauer, J., concurred.
Respondent’s petition for a rehearing was denied December 23, 1948. Carter, J., and Sehauer, J., voted for a rehearing.