I dissent.
I cannot agree with my associates in their discussion of and conclusions reached on the instruction given on unavoidable accident. This disagreement starts with the premise on which their argument is based. They ground their argument upon the assertion that the defense of unavoidable accident is not really an affirmative defense as it purports to be, but is merely a denial of negligence, contributory negligence and proximate cause and as such is not an affirmative defense at all. There might be a case in which this premise might be correct. However, under the pleadings and facts of the instant case it is my conclusion that the defense of unavoidable accident is not merely a denial of the allegations of the complaint but is an independent affirmative defense and that the burden of proving it rested on defendant.
The question thus presented has been mentioned in California cases but I can find none in which it has been thoroughly discussed. In Metcalfe v. Pacific Elec. Ry., 63 Cal. App. 331 [218 Pac. 486], the trial court refused to give instructions on the question of unavoidable accident. The District Court of Appeal analyzed the answer and held that it did not set up the defense of unavoidable accident and affirmed the judgment. If this ease is of any value here it is only because of an inference that such defense should be pleaded. In Pearce v. Elbe, 98 Cal. App. 101 [276 Pac. 389], the court said that the Metcalfe ease was not authority for holding that unavoidable accident must be specially pleaded. In the Pearce case the court remarked that a defendant could prove unavoidable accident under denials of negligence in its answer and approved the giving of instruc*77tions on that question. Smith v. Hale, 3 Cal. App. (2d) 277 [39 Pac. (2d) 445], is to the same effect. It is obvious that these eases only hint at the question here presented and are not decisive of it.
It is the law in California that “the party holding the affirmative of the issue must produce the evidence to prove it ... ” (Sec. 1981, Code Civ. Proc.) In Wilson v. California C. R. R. Co., 94 Cal. 166 [29 Pac. 861, 17 L. R. A. 685], it was said:
“As a general rule, the burden is on the defendant to prove new matter alleged as a defense (Osborn v. Hendrickson, 8 Cal. 31 ; Piercy v. Sabin, 10 Cal. 22 [70 Am. Dec. 692] ; Kuhland v. Sedgwick, 17 Cal. 123, 124 ; Bryan v. Maume, 28 Cal. 238, 244 ; Mulford v. Estudillo, 32 Cal. 131, 136), even though it requires the proof of a negative. ‘It makes no difference, therefore, whether the actor is plaintiff or defendant, so far as concerns the burden of proof. If he undertake to make a case, whether affirmative or negative, this case must be made out by him, or judgment must go against him. Hence it may be stated, as a test admitting of universal application, that whether the proposition be affirmative or negative, the party against whom judgment would be given as to a particular issue, supposing no proof be offered on either side, has on him whether he be plaintiff or defendant the burden of proof, which he must satisfactorily sustain. If there is a case made out against a defendant, on which, if the plaintiff should close, a judgment would be entered against the defendant, then the defendant has on him the burden of proving a case by which the plaintiff’s case will be defeated.’ ” (See, also, Dieterle v. Bekin, 143 Cal. 683 [77 Pac. 664] ; Bernesen v. Fish, 135 Cal. App. 588 [28 Pac. (2d) 67].)
Section 122 of the California Vehicle Act and its amendments, and section 525 of the Vehicle Code are illuminative. I will consider only those portions of the enactments applicable to the facts of this case. Section 122 of the California Vehicle Act (Stats. 1923, p. 517) provided that a motor vehicle must be driven on the right half of a public highway “unless it is impracticable to travel on such side of the highway.” This section was amended in 1929 (Stats. 1929, p. 540) but the same provision concerning the imprac*78ticability of a vehicle traveling on its right-hand side of the highway was retained. The section was again amended in 1931 (Stats. 1931, p. 2124). Its pertinent provisions were as follows: “Upon all highways of sufficient width, other than one-way highways, the driver of a vehicle shall drive the same upon the right half of the highway except when the right half is out of repair and for such reason impassable . . . ” The Vehicle Code was adopted in 1935 (Stats. 1935, chap. 27). Section 525 of that code supplanted section 122 of the California Vehicle Act. The code section as then adopted contained the following: “Upon all roadways of sufficient width a vehicle shall be driven upon the right half of, and as close as practicable to the right-hand curb or edge of, such roadway, except as follows: ... (c) When the right half of a roadway is closed to traffic while under construction or repair.” This code section was in effect at the time of the accident in the instant case.
From the foregoing enactments it is clear that a driver’s right to pass onto his left-hand side of a road has been progressively restricted. If the 1935 enactment be given its literal interpretation, a driver could not pass to his left of the center line, unless his right half of the road in front of him were “closed to traffic while under construction or repair, ’ ’ without being guilty of negligence per se and of being-liable for consequent damages proximately caused by his violation of law. I do not believe that the legislature intended to impose any such drastic consequence on the language it used in the section. A reasonable exception to the rule of the section should be found to permit the operation of motor vehicles where the right half of a highway is closed or impassable but not by reason of “construction or repair.” Such exception to a city ordinance was found by the Supreme Court in Umemoto v. McDonald, 6 Cal. (2d) 587 [58 Pac. (2d) 1274], where, in considering contributory negligence, it was said:
“This exception is recognized in Morris v. Purity Sausage Co., 2 Cal. (2d) 536 [38 Pac. (2d) 193] (also relied upon by appellant) which decision states that while the violation of a statute or ordinance as a general rule constitutes negligence, which will bar a recovery if such violation proximately contributes to the injury (19 Cal. Jur., pp. 632, 636), it may *79happen that prudence and safety of life or limb require the doing of an act which would otherwise be a violation of law, and liability therefor may be avoided by showing that under the circumstances of the particular case the violation was justifiable or excusable.”
In construing legislative enactments courts must give effect, where possible, to the language used, and must carry out the intention of the legislature where it can reasonably be done. From the language of the various enactments from which I have quoted, it would seem clear that up to at least August 14, 1931, the legislature gave considerable latitude to motorists who, for various causes, desired to turn onto their left-hand side of the highway. They were permitted to do so when continuing on their right-hand side was “impracticable”. Impracticability included numerous causes. By at least 1935, this privilege was greatly restricted. By the language of the statute it was confined to eases where the right half of the road was "closed to traffic while under construction or repair.” This has been extended by judicial decision to include cases where the turn was necessary to save life or limb (Umemoto v. McDonald, supra.)
It has long been the settled law in California that violation of the provisions of a statute constitutes negligence per se and that if such a violation proximately caused injury to one of the class which the statute was intended to protect a complete cause of action for negligence was made out when the violation of the statute and consequent injury and damage were proved. In Lahti v. McMenamin, 204 Cal. 415 [268 Pac. 644], it was said:
“In view of the finding of the jury just referred to, and this admission, it is apparent that defendant was traveling from a westerly direction on the wrong side of the street at the time his machine collided with plaintiff. Under these facts there can be no question as to defendant’s negligence.”
In Hopkins v. Galland Mercantile Laundry Co., 218 Cal. 130 [21 Pac. (2d) 553], the Supreme Court was considering the contributory negligence of a pedestrian who crossed a street at a point prohibited by a local ordinance. It was there said:
“If ordinance No. 7691 is a valid enactment it follows that at the place where he was injured the plaintiff was there in *80violation of the terms of the ordinance and that he was guilty of contributory negligence as a matter of law.”
It would seem unnecessary to cite further authority in support of these firmly established principles of law. However, in view of the restriction attempted to be placed on the application of these rules by my associates in arguing that where a violation of law is proved, that under some circumstances “the person involved is not negligent,” and that his conduct may not be negligence at all, it would seem advisable to do so. The following cases selected from a vast number of similar import support the rules announced in the two cases already cited: Stein v. United Railroads, 159 Cal. 368 [113 Pac. 663] ; Rabe v. Western Union Tel. Co., 198 Cal. 290 [244 Pac. 1077] ; Benjamin v. Noonan, 207 Cal. 279 [277 Pac. 1045] ; Hurtel v. Albert Cohn, Inc., 5 Cal. (2d) 145 [52 Pac. (2d) 922] ; Umemoto v. McDonald, supra ; Schultheiss v. Los Angeles Ry. Corp., 11 Cal. App. (2d) 525 [54 Pac. (2d) 49] ; Scalf v. Eicher, 11 Cal. App. (2d) 44 [53 Pac. (2d) 368] ; Coffey v. Slingerland, 9 Cal. App. (2d) 731 [50 Pac. (2d) 830].
Prom the foregoing authorities it would seem clear that violation of a statute is negligence as a matter of law; that proof of such violation establishes negligence in fact; that upon proof of such violation, negligence is established as a fact in the case. Whether or not such negligence was a proximate cause of an accident, was excused by another fact, or that liability from it was avoided by contributory negligence, cannot change the rule that violation of law is negligence and that proof of such violation establishes negligence in fact and as a fact. The statute establishes the standard of due care required and violation of the statute establishes the fact of failure to exercise due care which in itself is negligence.
Of course, after proof of such negligence per se on the part of a defendant, a plaintiff’s recovery may be defeated by proof of his contributory negligence (Hopkins v. Galland Mercantile Laundry Co., supra), or by some legal excuse for the negligence per se of defendant. (Umemoto v. McDonald, supra.) This is all that the language quoted by my associates from the case of Cragg v. Los Angeles Trust Co., 154 Cal. 663 [98 Pac. 1063, 16 Ann. Cas. 1061], means. *81In my opinion no other construction can be placed upon it, especially in view of the fact that the Cragg case, supra, and the others cited by my associates on this question were decided long before the present drastic provisions of the Vehicle Code were enacted.
Under the rule announced by the Supreme Court in the case of Wilson v. California C. R. R. Co., supra, I must proceed to analyze the evidence to determine if that introduced by plaintiffs made out a case against defendant on which a judgment would have been entered, for if such a case were made out against him then defendant had placed on him the burden of proving a case by which plaintiff’s case would have been defeated.
Plaintiffs were only required to prove negligence on the part of defendant, the proximate cause of the accident and consequent injuries, the extent of their damages, and heir-ship. This they did. Their evidence was clear, convincing and satisfactory on all the necessary elements except, perhaps, heirship. Negligence of the defendant was clearly and satisfactorily established when it was proved that defendant drove onto his left-hand side of the highway when the right half in front of him was not “closed to traffic while under construction or repair.” (Sec. 525, Vehicle Code.) The evidence of this negligence per se is clear and convincing and its truth is admitted by defendant. There was also the further proof of lack of due care on the part of defendant in failing to observe an object on the road in front of him when that object should have been made visible by his headlights when he was almost three hundred feet distant from it and when he could have stopped and avoided turning onto his left-hand side of the highway. (Sec. 670, Vehicle Code.) The question of proximate cause was settled by the verdict of the jury. There is ample evidence to support this implied finding. Damages were also proved and their amount fixed by the jury. There is no complaint of the amount of the damages awarded.
Upon such proof plaintiffs could have rested their case and could have confidently expected a verdict and judgment ,in their favor. It is true that it was in the evidence of plaintiffs that the fact of a horse being on the highway was first developed. That did not change the evidentiary facts neces*82sary to be established to support plaintiffs’ case. It injected into the case, out of order, a fact essential to defendant’s ease. This merely involves a question of order of proof which is not important here.
In order to escape the effect of plaintiff’s proof and escape a judgment against him, it was necessary for defendant to prove either that defendant’s admitted negligence .was not the proximate cause of the accident or that the deceased was guilty of contributory negligence, or some fact relieving him from the results of his admitted negligence.
Thus we see that upon the plaintiffs rested the burden of proving negligence, proximate cause and damages. This they did, and, had the case been then closed, judgment should have gone for them. Upon the defendant rested the burden of proving excuse for his admitted negligence under the settled rule that the party having the affirmative of an issue must prove it. This burden he attempted to meet by proving the separate affirmative defense of unavoidable accident which he had set up in his pleadings. Instead of simply denying negligence under this defense, defendant in his own testimony admitted that he had violated the provisions of section 525 of the Vehicle Code by driving on his left side of the highway when his half was not “closed to traffic while under construction or repair.” Thus he admitted negligence per se. He sought to justify this maneuver and excuse his violation of law with evidence that it was necessary to save life or limb. It seems to me that under the evidence of this. ease this defense of unavoidable accident was just as much of an independent affirmative defense as that of contributory negligence which must be supported by a preponderance of the evidence.
On the question of what constitutes an affirmative defense, the ease of Shropshire v. Pickwick Stages, 85 Cal. App. 216 [258 Pac. 1107] (hearing denied), is persuasive. It is there said:
“Measuring the answer by these rules, it seems clear that the defendants, in addition to a special denial of any negligence on their part, have further alleged that the accident and resulting injuries to plaintiff were caused solely and. alone by the carelessness and negligence of the operator of the Ford car, which brings into the case new matter not *83raised by the complaint, which constitutes an affirmative defense.
"The law in this state is well settled that the burden is on the defendants to prove new matter alleged as an affirmative defense. (Secs. 1869 and 1981, Code Civ. Proc. ; Válente v. Sierra Ry. Co., 151 Cal. 534 [91 Pac. 481] ; Wilson v. California C. R. R. Co., 94 Cal. 166, 172 [17 L. R. A. 685, 29 Pac. 861] ; 10 Cal. Jur. 786, 787, and eases there cited.)
“The instruction complained of reads as follows: ‘The defendant states in its defense that the accident was due solely to the negligence and carelessness of the driver of the Ford car, the car of Grove, and the burden is upon the defendant to prove that. That is an affirmative issue, and the burden is upon the defendant to prove that defense by a preponderance of the evidence in the whole case. Unless you find from a preponderance of the evidence on the whole case that this defense is made out, or if you find that the evidence is equally balanced, you will find against the defendant on that issue. ’
“The appellant contends that this instruction is erroneous for the reason that it imposes the burden upon the defendants of proving by a preponderance of the evidence that the accident was due solely to the negligence of the driver of the Ford car, thereby in effect requiring the defendants to prove that it was in no way responsible for the accident, and wholly ignored the well-settled rules in this state that the burden of proof is always upon the plaintiff throughout the trial of the case to prove the negligence of the defendants and that such negligence was the proximate cause of the injury. With this contention we cannot agree. This instruction refers solely to the affirmative defense raised by the defendants in their answer, as it concludes, ‘unless you find from a preponderance of the evidence on the whole case that this defense is made out, or if you find that the evidence is equally balanced, you will find against the defendant on that issue,’ meaning obviously the issue raised by the affirmative defense in the answer that the operator of the Ford car was alone responsible for the accident, and had no reference to the negligence of the defendants. It is- further evident that the instruction complained of related to the affirmative issue raised by the answer, by the fact that the court gave a number of instructions relative to the burden of proof and *84the preponderance of evidence as between the plaintiff and the defendants.”
By an affirmance of the judgment in favor of the plaintiff the quoted instruction was approved.
In speaking of the defense of inevitable accident in State Compensation Ins. Fund v. Lamb, 96 Cal. App. 236 [273 Pac. 1080], the court said:
“The defendants complain of an instruction given by the trial court, number 46. That instruction was addressed to the question as to who should prove an inevitable accident. It is difficult, under the - issues made by the pleadings, to see just what was the pertinency of the subject matter. Be that as it may, the defendants introduced it in the opening statement made by their attorney and thereafter followed up the subject and introduced proof thereon. There is nothing in the ease showing that there was any duty on the part of the plaintiffs to introduce evidence in support of the existence of the theory of inevitable accident, and if the subject matter be asserted as an affirmative defense, then the burden was on the defendants to make the showing.”
I cannot distinguish the instant case from the ease of Parker v. Auschwitz, 7 Cal. App. (2d) 693 [47 Pac. (2d) 341]. That was a case of damages for injuries following a collision of two motor vehicles. The proved negligence of Auschwitz was in having his truck on his left-hand side of the road. The driver of the ear in which plaintiffs were riding went to its left-hand side of the road in an attempt to avoid the collision. The defendant attempted to excuse his negligence in violating the law by testifying that his truck skidded on ice and over onto its left-hand side of the road without his fault. In commenting on this defense the court said:
“The burden therefore rested upon appellant to excuse or justify his position upon the highway. This he attempted to do by showing the truck skidded, and while the mere skidding of an automobile is not necessarily negligence (Smith v. Hollander, 85 Cal. App. 535 [259 Pac. 958, 58 L. R. A. 268] ; Lambert v. Eastern Massachusetts etc. Co., 240 Mass. 495 [134 N. E. 340, 22 A. L. R. 1291], the burden of establishing justification is on appellant.” (Defendant.)
*85My associates attempt to distinguish the Parker case from the instant case by saying that the Parker ease was tried by the court and that no instruction to a jury was involved. That does not seem to me to be adequate. A trial judge is required to instruct a jury on the law applicable to the facts of the case. Where there is no jury he is required to decide the case according to the same law. Because there was no jury and consequently no instructions does not change the law. If the burden of proving an excuse for being on the left-hand side of the road rests on a defendant in a case tried by the court the same burden should rest upon him in a case where there is a jury.
I am not unmindful of the rule that the phrase, “burden of proof,” is used in varying senses and in some cases without due regard to clear distinction in meaning. It sometimes means the burden of meeting a prima facie case made by the opposing party, and sometimes means the burden of producing a preponderance of the evidence on a material question in controversy. (10 Cal. Jur. 782.) Where it is used in the sense of meeting a prima facie case of an adversary it does not require the production of a preponderance of the evidence. When it is used in the sense of establishing an independent affirmative defense which is more than a denial of the allegations of the other party a preponderance of the evidence is required. The real test is an answer to the question: Which side would be successful on the issue if no evidence were introduced in support of it? (Scott v. Wood, 81 Cal. 398 [22 Pac. 871].) The answer to this question, under the facts here, seems obvious, for without evidence excusing defendant from the consequences of his admitted negligence, judgment should, and undoubtedly would have gone against him. Therefore the burden of proving an excuse for his admitted negligence by a preponderance of the evidence rested upon him.
If the burden of proving the defense of contributory negligence by a preponderance of all of the evidence rests on a defendant, as it does (19 Cal. Jur. 697), and if the burden of proving by a preponderance of the evidence that an accident was caused by the negligence of a third party, rests on a defendant, as has been held (Shropshire v. Pickwick Stages, supra), then I am unable to see how the burden of *86proving an excuse for admitted negligence, by a preponderance of the evidence, should not also rest upon a defendant. He should have the burden of proving such a defense where, as here, it is much more than a denial of plaintiffs’ allegations of defendant’s negligence.
If it be true that my associates have correctly argued that defendant’s driving onto his left-hand side of the road was not negligence at all because of the necessity for that maneuver to save life and limb, still it would not follow that the burden of justifying it by a preponderance of the evidence was not on defendant. It was no part of plaintiffs’ case to prove unavoidable accident. (State Compensation Fund v. Lamb, supra.) Plaintiffs would have been successful on that issue if no evidence had been introduced to support that plea. As that issue was no part of plaintiffs’ case (it was new matter injected into the case by defendant) and as defendant would have had judgment against him on that issue if it were not supported by evidence, it follows that the burden of proving such defense by a preponderance of the evidence lay upon him. (Scott v. Wood, supra.)
In my opinion the instruction on unavoidable accident given by the trial judge was not prejudicially erroneous under the allegations of the pleadings in this case and the evidence introduced in support of them.
If I correctly understand the portion of the main opinion dealing with the sufficiency of the proof of heirship, nothing is there decided, although it is strongly intimated that plaintiffs ’ proof of heirship was insufficient.
There is in the record an exemplified copy of the judgment roll in the ease of Helen Jolley v. Joseph M. Jolley, decided by the District Court of the Fourth Judicial District of the State of Utah. The complaint in that action alleged “That there is no issue of said marriage” of Helen and Joseph M. Jolley. This allegation was found by the court to be true. It was also found that for more than a year prior to the filing of her complaint plaintiff ‘ ‘ was, and now is, a tona fide resident of Utah County, Utah.” The judgment annulled the marriage. On its face it is a valid, final judgment by a court of competent jurisdiction. In my opinion this record completes at least prima facie proof of heirship *87sufficient to support the judgment. (Rabe v. Western Union Tel. Co., supra.).
A petition for a rehearing of this cause was denied by the District Court of Appeal on September 8, 1938, and an application by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 7, 1938.