I concur in the result, because after reviewing the entire record I conclude that there has been no miscarriage of justice. (Cal. Const., art. VI, § 13.) I cannot, however, subscribe to the majority’s implied approval of the trial court’s ultraliberal reaction to plaintiffs failure to respond to defendant’s requests for admission. It is apparent that neither the trial court, nor this court, can accept that section 2033, subdivision (a) of the Code of Civil Procedure means what it says. It obviously goes against everyone’s sense of justice to hold that by failing to deny request 9, plaintiff had admitted away the lion’s share of his case as far as damages are concerned.
If neither the bar nor the bench can live with section 2033, it might perhaps be wise if the Legislature and the Law Revision Commission took another look at its provisions.
For present purposes, I am satisfied that defendant went to trial prepared to meet the issues which plaintiff had admitted away, and that no prejudice has been demonstrated.
Concerning the instruction based on language in Touhy v. Owl Drug Co., 6 Cal.App.2d 64 [44 P.2d 405]: by lifting language from that opinion, never intended for the consumption of a jury, plaintiff’s counsel managed to convey a somewhat slanted message to that body of laymen. (See Francis v. City & County of San Francisco, 44 Cal.2d 335, 341 [282 P.2d 496].) What did the instruction add to the relevant portions of BAIT? *143(BATI No. 8.00 et seq.) To what purpose do the authors of BAJI spend hours drafting emotionally “neutral” instructions, if counsel are to be permitted to smuggle evocative language about dangers “to humanity” into the court’s charge?
Again, however, I am unable to say that the error was prejudicial in light of the whole record.
A petition for a rehearing was denied July 19, 1973, and appellant’s petition for a hearing by the Supreme Court was denied August 22, 1973.