I dissent. It seems to me the majority has totally disregarded the rights of boards of education and trustees of school districts to provide courses in physical ■ education in accordance with power vested in them by the law of the state, and has placed within the power of a jury to say whether such courses should be pursued regardless of negligence on the part of the public authorities. Courses in physical education will thus be curtailed or eliminated, depending on the degree of “guess” indulged by the school authorities on what a jury would say about it. My views are expressed in the dissenting opinion of Mr. Justice Nourse sitting pro tempore in this court on the former hearing and in which dissenting opinion I then concurred. That opinion is as follows:
“The complaint charges the district with negligence in general terms. To hold it liable for injuries received in this manner it is necessary to prove that the district was guilty of some act of omission or commission which this court can say as a matter of law is actionable negligence. ‘The law does not make the school districts insurers of the safety of the pupils at play or elsewhere.’ (Goodman v. Pasadena City H. S. Dist., 4 Cal. App. (2d) 65 [40 Pac. (2d) 854].)
“The record is silent in so far as proof of any act of negligence is concerned. If it be argued that it was negligence for the school district to give the course of instruction in the first instance, the answer is that it is one prescribed and accepted in thousands of other schools. If it be argued that this particular stunt is inherently dangerous, the same answer holds. Since the true test of negligence is what a reasonable person would do under similar circumstances, the directors of the school district cannot be held negligent in prescribing these exercises in view of the common acceptance of the course by others. Here is a standard of ‘due care' established by accepted practice throughout our common schools. Our dis*590trict cannot be held negligent in simply following this general standard.
“There is nothing left but the asserted negligence of the instructor, first, in her method of handling the class, and second, in permitting plaintiff to do this stunt at this particular time. As to this, there is no evidence of incompetency or neglect in her manner of instruction. To the contrary the only evidence on the subject shows that the class was brought on carefully and skillfully until the close of the semester when the girls were all prepared to perform these stunts for their ' grades. The plaintiff frankly testified that she had gone through all this development successfully and had performed this particular stunt more than forty times before and during the day in which she was injured.
“It is intimated that the instructor might have been negligent in permitting plaintiff to do the stunt on this particular day because of a previous knee injury. The alleged injury to the knee occurred two weeks before the. date of the injury sued on. During the period following, plaintiff continued to perform this stunt and others on numerous occasions twice a week without complaint and without notice to her instructor that she had any difficulty or distress. The ‘knee injury’ was plainly an afterthought greatly overemphasized by her counsel. But, assume it to be true, still after this injury the plaintiff continued with the course unhampered, participated in all her other class activities, and, on the day of the accident she voluntarily went to her teacher, told her she had accomplished the stunt, that she was ready for her test, and asked her teacher to observe her for her marking. The injury resulted from her improper use of her hands. She did not at any time attribute it to her knee. Her explanation is: ‘Q. What happened to you? A. As I was running up to go over the girls my hands went over and they went underneath me and I went down on the mat and I hit my head on this side. ’ A number of other girls in the class who witnessed the accident testified that plaintiff ‘took off’ on one foot, whereas, they had all been trained to take off on both feet. This is what caused her fall, and this is not controverted in any respect whatever. The stunt was the last of a series of eighteen given in the course. It was necessary for the pupil to pass but ten of the eighteen to get her grade. It was not necessary for her to do the ‘roll over two’. She chose this voluntarily and never complained to her instructor that it *591was too hard or too dangerous or that she had any difficulty or pain. Her protest was to the course as a whole. She wanted to take an easier course for the same grade—a very common desire among pupils in all schools.
“This case is of far greater importance than the amount of the verdict. • It charges the school district with negligence when it has done nothing more than follow the rules and regulations in accordance with universal practice; it condemns as careless and negligent a competent and faithful teacher who just did her duty as prescribed for her in the rules and regulations. It opens the door to suits for damages for any injury which a pupil may sustain—not only upon the school premises, but on the street or at home, because it holds that the jury is the final judge of what is negligence and hence, may give damages at its will. In effect it holds that each jury may determine what in its judgment is a proper course of instruction, whereas the state has committed that function to the school authorities.
“The opinion is unfair to the school district and to the entire structure of education throughout the state. No district and no teacher can tell whether physical education is condemned as negligence in all cases, or whether it is the duty of the teacher to examine and know the physical and mental condition of every pupil, and assume liability if any injury occurs to a pupil by reason of such physical and mental condition at any time and at any place.
“Confusion must result from the opinion because of the difficulty in determining its rule. What is the rule of this case ? Is it that if there is any hazard in a course of instruction the district is liable for any injury resulting therefrom? If so the schools are negligent as a matter of law for giving that course, though the state school law may authorize or require it. Is it intended to hold that a teacher is negligent if she permits a pupil to take a course which carries some hazard, or if the pupil is later found to have been physically unfit? If so the teacher must have medical training to determine the physical fitness of each pupil. Is it the rule that negligence results when injury arises in a course which is taken under protest? The opinion states that some girls enjoy the exercises, but that this plaintiff took it under protest. The same is often true as to Latin, algebra and the sciences. Would it follow that the district is liable if a girl gets a headache when she takes algebra under protest ? This *592girl was a healthy specimen weighing 117 pounds and had never before complained to the teacher of physical weakness or sickness—except as to the so-called knee injury. How can it be said that the district was negligent in permitting her to take the course in the first instance? Is it the rule of the ease that this course is ‘inherently dangerous’ or is this confined to the particular stunt of ‘roll over two’? The opinion states that the stunt might be inherently dangerous—that means injury might result if it is not done properly. Every athletic event, the R O. T. C., the courses in physics, chemistry, the simple game of tennis or hockey—even the old fashioned ‘wand’ exercises—would likewise be ‘inherently dangerous' because injury might result in any of them. The opinion states that the exercise might have been ‘too strenuous or otherwise undesirable for girls’. This goes to the entire course of physical education for girls throughout the entire school system of the state. Does the opinion hold that the district is negligent in prescribing the course in the first instance, because girls are too weak generally, or because they are unable to absorb instruction to perform properly? Or is it intended merely to hold that the courts and not the school authorities should determine what courses of instruction should be given ?
“The opinion fails to pass on any of these elements positively. It does say that all these circumstances taken together would support an inference of negligence. This is sound if any of the ‘circumstances’ is negligence in itself. But this is not sound if no one of the elements is actionable negligence as a matter of law. The sum of nothing plus nothing equals nothing.
“Where the standard of conduct required of persons under given circumstances is so obvious as to be applicable to all persons' under such circumstances a question of law is presented. (Ross v. Pacific Elec. Ry. Co., 39 Cal. App. 658 [179 Pac. 538]; Hamlin v. Pacific Elec. Ry. Co., 150 Cal. 776 [89 Pac. 1109].) It is error to say that negligence is always a question of fact for the jury. The truth of the facts is to be determined by the jury but if these facts do not as a matter of law constitute actionable negligence it is a question of law for the court. Negligence cannot be inferred when the only facts proved are such that reasonable minds—not sympathy—can draw but one conclusion—that there was no negligence. It must be borne in mind that this is not a question of conflict *593in the evidence. We have given to the respondent every presumption of truth in her evidence and still there is no evidence of any act of commission or of omission by the school district or by its employee which can, as a matter of law, be designated as actionable negligence.”
Langdon, J., and Houser, J., concurred.