I dissent.
The majority opinion concedes that under the testimony the question of whether the respondent was guilty of contributory negligence was one of fact for the jury, and yet it is held that the giving of the instruction to the effect that the law presumed that she exercised “ordinary care for her *135own safety at the time of the accident here involved” was not prejudicial. I cannot assent to such a holding.
In the first place, the respondent testified at length concerning the circumstances of the accident and the manner thereof. There was in my opinion no room for the operation of the presumption. (Paulsen v. McDuffie, 4 Cal. (2d) 111 [47 Pac. (2d) 709].) What is a presumption? According to Ballentine’s Law Dictionary, it is “A term used to signify that which may be assumed without proof, or taken for granted.” Where the facts are proved, how can we assume or, as we said in the cited case: “In the present action, plaintiff was not only alive but was called as a witness and testified fully as to all of his actions just prior to and at the time of his injury. Other witnesses observed plaintiff and gave in detail a complete account of the whole affair which resulted in plaintiff’s injury. It is difficult to see how there was any place for a presumption as to the plaintiff's conduct. What he did on that occasion was entirely covered by the evidence in the case, and there was neither necessity nor reason for indulging in any presumption upon that subject. That instruction had no place in this case and should not have been given. Had this been a case where the contributory negligence of the plaintiff would have defeated his claim for damages, the consequences following the giving of that instruction might have been most serious, and possibly might have required a reversal of the judgment.” Nor is it possible to say, because instructions were given upon the subject of burden of proof and contributory negligence, that the instruction here given did not harm defendants’ case, as a moment’s reflection will demonstrate. Who can say but that the jury, taking the instruction for its face value, resolved the doubt in favor of the respondent on the question of contributory negligence. Or to put it in another way: If, in the absence of evidence explanatory of the accident, the instruction had been properly given, we would hold that the presumption was sufficient to sustain the burden of proof and negative contributory negligence. (Smellie v. Southern Pac. Co., 212 Cal. 540 [299 Pac. 529].)
Edmonds, J., concurred.
Rehearing denied. Edmonds, J., voted for a rehearing.