GIBSON, C. J. Plaintiff brought this action to recover for personal injuries and property damage suffered when his car was struck in the rear by an automobile driven by defendant. He appeals from a judgment in favor of defendant, contending that the judgment is contrary to the evidence and that he was prejudiced by certain instructions given at defendant’s-request.
The manner in which the accident occurred is undisputed. Plaintiff was driving south in the outside lane of a level, four-lane asphalt highway. It was a clear day, and the pavement was dry. He brought his car to a stop approximately 100 feet north of an intersection which had stop signs at all four corners. Five cars had stopped between plaintiff and the intersection, and, after he had been there for 15 or 20 seconds, waiting for the traffic to proceed, he heard a squeal of brakes and the rear of his car was struck by the front of defendant’s ear.
Defendant testified that he had driven onto the highway two and a half blocks north of the scene of the accident, and, as he proceeded toward the intersection, he observed plaintiff’s car coming to a stop. When traveling at 20 miles per hour and about 200 feet from the place where plaintiff had stopped, defendant applied his brakes, but they did not take hold. There was no resistance to the pressure which he ap[621]plied, and the pedal went all the way to the floor. Defendant could not turn to the left because another automobile was there, and he was afraid to turn to the right, toward a ditch, for fear he might tip over. In the stress of the moment he decided to go straight ahead, and he was so excited he did not think of using the hand brake. Witnesses who examined defendant’s car after the accident testified that the brake pedal, when tested, went down to the floor without resistance and that there were “no brakes.”
The parties agree that, under the undisputed evidence, a presumption of negligence upon the part of defendant arose by reason of the operation of sections 670 and 679 of the Vehicle Code as they read at the time of the accident. Section 670 then provided: “(a) No person shall operate on any highway any motor vehicle . . . unless such motor vehicle ... is equipped with brakes adequate to bring such motor vehicle ... to a complete stop when operated upon dry asphalt or concrete pavement surface where the grade does not exceed 1 per cent at the speeds set forth in the following table within the distances set opposite such speeds : [The stopping distance for a speed of 20 miles per hour was fixed at 37 feet.*] ...(c) If a vehicle is equipped with more than one system of brakes, each shall be maintained in good working order. ...” Section 679 declared that it was unlawful to operate on any highway any vehicle which was in an unsafe condition or was not equipped as required by the code.
The presumption of negligence which arises from the violation of a statute is rebuttable and may be overcome by evidence of justification or excuse. (Gallup v. Sparks-Mundo Engineering Co., 43 Cal.2d 1, 9 [271 P.2d 34] ; Tossman v. Newman, 37 Cal.2d 522, 525 [233 P.2d 1].) There is no evidence of contributory negligence, and, since it is clear from defendant’s admission that the failure of his brakes was a proximate cause of the accident, it follows that defendant would be liable as a matter of law in the absence of a sufficient excuse or justification for violation of the code. It is plaintiff’s contention that defendant did not produce enough evidence to rebut the presumption and, therefore, that the [622]trial court erred in denying plaintiff’s motion for a directed verdict upon the issue of liability. In passing upon this contention we must consider what rule is to be applied in determining whether defendant has overcome the presumption.
A large number of cases, although varying considerably in the language used, stand generally for the proposition that where a person has disobeyed a statute he may excuse or justify the violation by evidence that he did what might reasonably be expected of a person of ordinary prudence acting under similar circumstances who desired to comply with the standard of conduct established by the statute. (See Nevis v. Pacific Gas & Elec. Co., 43 Cal.2d 626, 633 [275 P.2d 761] [“nonnegligent” ignorance of facts] ; Gray v. Brinkerhoff, 41 Cal.2d 180, 184 [258 P.2d 834] [declaring that the violator could have fulfilled his duty “if he had exercised ordinary care”]; Whitechat v. Guyette, 19 Cal.2d 428, 436-438 [122 P.2d 47] ; Berkovitz v. American River Gravel Co., 191 Cal. 195, 198-200 [215 P. 675] [unlighted tail light] ; Edgett v. Fairchild, 153 Cal.App.2d 734, 738-739 [314 P.2d 973] ; McEachen v. Richmond, 150 Cal.App.2d 546, 550 [310 P.2d 122] ; Bryant v. Tulare Ice Co., 125 Cal.App.2d 566, 569 [270 P.2d 880] ; Taylor v. Jackson, 123 Cal.App.2d 199, 201-202 [266 P.2d 605]; Fuentes v. Panella, 120 Cal.App.2d 175, 183-184 [260 P.2d 853] ; Driver v. Norman, 106 Cal.App.2d 725, 727-728 [236 P.2d 6] ; Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715, 719 et seq. [211 P.2d 905] [brake failure] ; Dennis v. Gonzales, 91 Cal.App.2d 203, 206, 209-210 [205 P.2d 55]; Matsumoto v. Renner, 90 Cal.App.2d 406, 411 [202 P.2d 1051] [unlighted tail light]; Takahashi v. White Truck etc. Co., 15 Cal.App.2d 107, 110 [59 P.2d 161] [unlighted tail light]; Nelson v. Signal Oil & Gas Co., 10 Cal.App.2d 448, 449-450 [51 P.2d 885] [unlighted tail light] ; Hardin v. Sutherland, 106 Cal.App. 473, 479-480 [289 P. 900] ; Rath v. Bankston, 101 Cal.App. 274, 279-284 [281 P. 1081] [dictum re brake failure]; Phillips v. Pickwick Stages, 85 Cal.App. 571, 573-574 [259 P. 968] [dictum re brake failure] ; Giorgetti v. Wollaston, 83 Cal.App. 358, 363 [257 P. 109] [unlighted tail light] ;cf. M & M etc. Transport Co. v. California Auto Transport Co., 43 Cal.2d 847 [279 P.2d 13].)
In a second group of cases it is stated or indicated that justification or excuse for violation of a statute can be found only in causes or things “beyond the control of the person charged with the violation.” (See Ornales v. Wigger, 35 Cal.2d 474, 479 [218 P.2d 531]; Satterlee v. Orange Glenn School [623]Dist., 29 Cal.2d 581, 589 [177 P.2d 279]; Gruss v. Coast Transport, Inc., 154 Cal.App.2d 85, 87-90 [315 P.2d 339] ; Miller v. Jensen, 137 Cal.App.2d 251, 256-257 [290 P.2d 52]; Garcia v. Webb, 131 Cal.App.2d 448, 450-451 [280 P.2d 829]; Jensen v. Southern Pacific Co., 129 Cal.App.2d 67, 77-79 [276 P.2d 703]; Kuehn v. Lowthian, 124 Cal.App.2d 867, 871-872 [269 P.2d 666]; Graf v. Garcia, 117 Cal.App.2d 792, 797-798 [256 P.2d 995]; Carlson v. Shewalter, 110 Cal.App.2d 655, 658 [243 P.2d 549]; Parmalee v. Bartolomei, 106 Cal.App.2d 68, 70-72 [234 P.2d 1019]; Wilkerson v. Brown, 84 Cal.App.2d 401, 406-407 [190 P.2d 958]; Mecchi v. Lyon Van & Storage Co., 38 Cal.App.2d 674, 682-683 [102 P.2d 422]; Gallichotte v. California Mut. etc. Assn., 4 Cal.App.2d 503, 506 [41 P.2d 349]; Morris v. Purity Sausage Co., 2 Cal.App.2d 536, 539-540 [38 P.2d 193].) Instructions to this effect are contained in California Jury Instructions, Civil, No. 149 and No. 149.1, but the authors state that these were included in deference to a dictum in Ornales v. Wigger, 35 Cal.2d 474, 479 [218 P.2d 531], and that such an instruction sets up a confusing and impossible standard. (See 1 Cal. Jury Instns., Civ. (4th rev. ed., 1956), pp. 392-393.) Many of the cases in this group have not applied the “beyond the control” test strictly but, rather, have used it in the sense that the factors or causes involved would not have been anticipated and guarded against by a person of ordinary prudence who wished to obey the statute.
A third method of expressing what would serve as a justification or excuse is found in an instruction, approved by some cases, which declares that the jury may assume that a person of ordinary prudence will reasonably endeavor to obey the law and will do so unless causes, not of his own intended making, induce him, without moral fault, to do otherwise. (Combs v. Los Angeles Ry. Corp., 29 Cal.2d 606, 609-611 [177 P.2d 293] ; see McEachen v. Richmond, 150 Cal.App.2d 546, 551 [310 P.2d 122] ; see also Cal. Jury Instns., Civ. (4th rev. ed., 1956), pp. 392-393.) However, it has been held not error to refuse to give this instruction because it contains vague and shadowy concepts which lack the precision of good legal definition. (Cucuk v. Payne, 140 Cal.App.2d 881, 887 [296 P.2d 7].) The criticism seems to be valid, since it would be difficult, if not impossible, for jurors to understand from this language what they were expected to look for in passing upon the conduct of the person who is charged with having violated the statute.
[624]In our opinion the correct test is whether the person who has violated a statute has sustained the burden of showing that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law. The language contained in the second and third groups of cases referred to above is disapproved insofar as it is inconsistent with the rule just stated.
The jury in the present case was instructed that, in order to overcome the presumption of negligence, the evidence must show that the statutory violation resulted from causes or things beyond the control of the person charged with the violation. Plaintiff, however, is not in a position to complain of this instruction since he requested it and it was more favorable to him than a statement of the proper rule.
When the correct test is applied to the facts of the present case, it appears that the evidence is sufficient to go to a jury on the question whether defendant acted as an ordinary prudent man who wished to comply with the statutory requirements as to brakes. Defendant’s automobile was a 1949 model which he had purchased in January 1955, and it was equipped with hydraulic foot brakes and a mechanical hand brake which worked independently. There is evidence that he drove the ear to test the brakes when he purchased it and that they were in good condition. During the five months which elapsed prior to the accident, there was nothing wrong with the brakes and they were “working in perfect condition.” Defendant had the car lubricated at a service station in April 1955 and was given a service “receipt and guarantee” which indicated that the wheel brake cables and master cylinder had been inspected and lubricated and that no service or replacements were recommended. A few weeks before the accident a garage did some work on the clutch, and at that time no suggestion was made to defendant that there was anything wrong with the brakes. On the day of the accident defendant drove 10 miles to his place of employment, stopping at numerous intersections, and the brakes worked perfectly. The car was parked at 7:45 in the morning and was not driven until defendant’s quitting time at 4:30 p.m. After he left his parking place, it was not necessary for him to apply the brakes until he reached the scene of the accident, about two and a half blocks away, and he had no warning of any kind that there was anything wrong with the brakes.
The evidence thus presents a question for the jury as to whether defendant took sufficient steps to meet his obligation [625]to maintain Ms brakes in good condition, and plaintiff’s motion for a directed verdict was properly denied.
Plaintiff is correct in Ms contention that errors were committed in giving instructions requested by defendant. The court gave the unavoidable accident instruction condemned in Butigan v. Yellow Cab. Co., 49 Cal.2d 652 [320 P.2d 500]. The jury was also instructed: “The mere fact that an accident happened, considered alone, does not support an inference that some party, or any party, to this action was negligent.” We have held that, where, as here, the uncontradicted evidence warrants the application of the doctrine of res ipsa loquitur, it is error to give the quoted instruction. (Jensen v. Minard, 44 Cal.2d 325, 329 [282 P.2d 7]; see Shaw v. Pacific Greyhound Lines, ante, pp. 153, 156-158 [323 P.2d 391] ; Phillips v. Noble, ante, pp. 163, 166-167 [323 P.2d 385] ; Barrera v. De La Torre, 48 Cal.2d 166, 170 et seq. [308 P.2d 724]; cf. Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 261-262 [143 P.2d 929]; England v. Hospital of Good Samaritan, 22 Cal.App.2d 226, 230 [70 P.2d 692] ; Ellis v. Jewett, 18 Cal.App.2d 629, 634 [64 P.2d 432].) Por the reasons set forth in the cited cases holding it is error to give the mere happening of the accident instruction where an inference of negligence arises as a matter of law, it is likewise error to give that instruction where a presumption of negligence arises as a result of defendant’s disobedience of a statute. The question is whether these errors require a reversal of the judgment. (Const., art. VI, § 4½.)
No precise formula can be drawn for deciding whether there has been a miscarriage of justice. In each instance the determination whether the probable effect of an instruction has been to mislead the jury and whether the error has been prejudicial so as to require a reversal depends upon all the circumstances, including the evidence and the other instructions given. Here there were instructions that made it clear that under the admitted facts a prima facie ease has been proved against defendant and that, in order to escape liability, he must exculpate himself by showing justification or excuse. As we have seen, the evidence on this issue was uncontradicted and amply sufficient to show that prior to the accident defendant took reasonable precautions to see that his brakes were in good working condition. Under the circumstances it does not appear that there has been a miscarriage of justice.
[626]The appeal from the “verdict” is dismissed since no appeal lies therefrom. The judgment is affirmed.
Traynor, J., Schauer, J., and Spence, J., concurred.
MeComb, J., concurred in the judgment.
The provisions relating to stopping distances now appear in section 670.05 of the Vehicle Code, which specifies a maximum stopping distance of 25 feet for a car like defendant’s when traveling at a speed of 20 miles per hour.