This is an appeal by:
A. Defendant Morris A. Kurstin from a judgment in favor of plaintiff for damages in the sum of $4,697.50 after a trial before a jury;
B. Defendant Bernice Kurstin from an order grаnting plaintiff a new trial on the issue of damages solely.
Viewing the evidence most favorable to plaintiff
(Ah Gett
v.
Carr,
Plaintiff at approximately 10:15 P. M., December 17, 1934, approached the southwest corner of Wilshire and Rampart Boulevards in the city of Los Angeles. Looking west on Wilshire Boulevard, she observed an automobile approaching her approximately a block away. At the same time she saw an automobile owned by defendant Bernice Kurstin, and being operated by defendant Morris A. Kurstin, traveling rapidly in a westerly direction on the same boulevard about 600 feet east of thе intersection. The traffic signals were not in operation, but were flashing a yellow light. She then stepped into Wilshire Boulevard walking raрidly in the pedestrian crosswalk toward the northerly side of the thoroughfare. When in the center of the street she looked and saw defendant’s car traveling west on Wilshire Boulevard near the northerly curb at a speed of about forty miles per hour. Continuing to walk in a northerly direction for five or six feet, she again observed the defendant’s car as it entered the intersection. Suddenly it swerved in a southwеsterly direction and then again in a westerly direction, striking and seriously injuring the plaintiff while she was in the crosswalk approximately six feet north of the center line of the artery.
*260 A.
Defendant Morris A. Kurstin relies for reversal of the judgment on three propositions:
First: Plaintiff was guilty of contributory negligence as a matter of law.
Second: The trial court committed prejudicial error in instructing the jury as follows:
(a) “The term ‘рreponderance of the evidence’ means the greater weight of the evidence. It does not necessarily mean thе testimony of the greater number of witnesses on one side as opposed to a lesser number on the other. It means evidencе which produces conviction in your minds, rather than that which is not convincing to you. The burden of producing a preponderancе of the evidence rests upon the party having the affirmative of an issue, and in civil cases, such as this, all that is required is a preponderance of the evidence.’’
(b) “The right of drivers of automobiles to use public highways is not superior to that of any pedestrian, and in the exercise of a common right to the use of such public highways all persons using the same must exert constant care and cаution for the conservation of the corelative rights of each of the parties.’’
(c) “You are instructed that the defendant, Morris Kurstin, had no right to assume that the highway was clear, but under all circumstances and at all times he was bound to anticipate the presence of pedestrians lawfully upon the highways, and he was at all times and at all places required to use ordinary care and shill fоr the safety of such pedestrians, and if you find that the defendant, Morris Kurstin, failed to exercise ordinary care and shill for the safety and рrotection of such pedestrians, then I instruct you that he was negligent in this particular.’’
Third: The tidal court committed prejudicial error in (а) giving, (b) refusing, and (c) giving as modified, various instructions.
Defendant Morris Kurstin’s first proposition is answered by an unbroken line of decisions in this state, holding contributory negligence on the part of plaintiff a question of fact for determination by the trial jury, whose finding will not be disturbed by this court) if there is substantial evidence
*261
in support thereof.
(Shields
v.
King,
The portion of the instruction set forth in paragraph (a) of defendant Morris Kurstin’s second proposition reading, “It means evidence which produces convictiоn in your minds, rather that that which is not convincing to you,” was inaccurate and academically incorrect beyond doubt. PIowever, in viеw of the other instructions given by the trial court, this inaccurate statement did not constitute reversible error.
(Bowman
v.
Motor Transit Co.,
The instructions set forth in paragraphs (b) and (c) of appellant’s second proposition are accurate statements of the principles of lаw embodied therein. Mr. Justice Lennon in
Rush
v.
Lagomarsino,
“The right of drivers of automobiles to use public highways is not superior to that of the humblest pedestrian and in the exercise of a common right to the use of the public highways all persons using the same must exert constant care and cаution for the conservation of their correlative rights commensurate with the special hazard which is peculiar to and nowаdays ever present in the use of public highways. Accordingly the driver of an automobile ‘has no right to assume that the road is clear, but undеr all circumstances and at all times he must be vigilant and must anticipate the presence of others. . . . Even though the operator of an automobile may be rigidly within the lаw, ‘he still remains bound to anticipate that he may meet persons at any point of the street and he must, in order to avoid the charge of negligence, keep a proper lookout for them and keep his machine under such control as will enable him to avoid a collision with another person using proper care and caution and if the situation re *262 quires, lie must slow up and stop ’. (Reaugh v. Cudahy Packing Co.,189 Cal. 335 , 340 [208 Pac. 125 ,127].)
‘ ‘ The instruction immediately under сonsideration in effect declared the law to be that ‘it is not a part of the duty of an operator of a motor vehicle to keep his machine always under control, or that it is his duty to keep it under control only a part of the time; ... Of course such is not the law.” (Italics ours.)
See, also,
Meyers
v.
Bradford,
Defendant Morris Kurstin finally contends that the trial court in numеrous instances committed prejudicial error in either (a) giving, (b) refusing, or (e) giving as modified, various instructions. A careful examination of the аlleged errors fails to substantiate his contention.
B.
Defendant Bernice Kurstin contends:
A new trial may not be granted as to the oioner of an automobile sued under section 1714% of the Civil Code on the issue of damages solely.
This proposition is untenable. If the trial court is of the opinion that the amount of damages awarded is not legally adequatе nor commensurate with the extent of injury received by the plaintiff, it may grant a new trial on the ground that the evidence does not justify the verdict
(Koebig
v.
Southern Pacific Co.,
The judgment and order from which the appeals were taken are and each is affirmed.
Grail, P. J., and Wood, J., concurred.