McCOMB, J. I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Fourt in the opinion prepared by him for the District Court of Appeal, which reads, as follows:
“This is an appeal1 by plaintiffs, Victor Brown, a minor, and his parents, William A. Brown, Jr., and Enolla Brown, from a ‘Judgment on Verdict in Open Court’ entered in favor of defendants in an action for personal injuries suffered by Victor Brown arising out of a collision between an automobile driven by defendant Connolly and a bicycle ridden by plaintiff Victor Brown.
“Plaintiffs' contentions on this appeal relate to whether the trial court erred ‘in refusing to give plaintiffs’ requested instruction affording to the infant Victor the presumption of due care in his own behalf and in refusing to allow plaintiffs, through an expert witness, to give an explanation to the jury of plaintiff Victor’s failure to testify.'
“There is no question with reference to the sufficiency of the evidence to support the judgment. While there were some minor discrepancies in the evidence at the two trials, the opinion of Mr. Justice Fox in the first appeal of this case (Brown v. Connolly, 206 Cal.App.2d 582 [24 Cal.Rptr. 57]), succinctly and accurately sets forth the basic facts relating to the occurence of the accident, and the statement therein contained is hereby expressly incorporated by reference herein. The facts which are particularly relevant and material to the various contentions presently made by plaintiffs will be set forth under the respective contentions.
“Plaintiffs’ first contention is that the trial court erred in refusing to instruct the jury that the minor plaintiff was presumed to have exercised due care in his own behalf. Plain[400]tiffs’ preferred instruction is set forth in the footnote.2 Two arguments in support of this contention are advanced:
“First, that the mere fact of minority insulates a minor plaintiff with the presumption of due care where the defense of contributory negligence is asserted against the minor.
“In support of this position plaintiffs cite and rely upon the cases of Barrett v. Harman, 115 Cal.App. 283 [1 P.2d 458] ; Van Der Most v. Workman, 107 Cal.App.2d 274 [236 P.2d 842]; and McKay v. Hedger, 139 Cal.App. 266 [34 P.2d 221]. The Barrett case, which is cited in both the Van Der Most case and McKay case, does not represent the correct rule. In Barrett, the infant plaintiff, age 11, testified that he crossed the street in a crosswalk. The defense attempted to impeach him. A verdict was rendered in favor of plaintiff and the defense asserted on the appeal that the evidence showed contributory negligence as a matter of law. In affirming, the court stated that the ‘presumption is that the child was at all times exercising due care for its own safety (Code Civ. Proc. § 1963, subd. 4).’ (P. 286.)
“Code of Civil Procedure, section 1963, subdivision 4, is no authority for singling out a child, as distinguished from an adult or any other person, insofar as this particular presumption is concerned. This section merely provides that ‘a person takes ordinary care of his own concerns, ’ and does not distinguish between age groups. It is now established that an instruction on due care should not be given when the party who seeks to invoke it testifies concerning his conduct immediately prior to or at the time of the accident. (Laird v. T. W. Mather, Inc., 51 Cal.2d 210 [331 P.2d 617].)
“Recent cases have clearly crystalized the law and it has been held that the presumption of due care is proper in two situations: (1) in an action for wrongful death there is a presumption that the decedent exercised ordinary care for his own concerns; (Anthony v. Hobbie, 25 Cal.2d 814 [155 P.2d 826]; Westberg v. Willde, 14 Cal.2d 360 [94 P.2d 590]; Mc-[401]Baine, Cal. Evidence Manual [2d ed. 1960] § 1291, pp. 472-475; Witkin, Cal. Evidence (1958) §§ 65-67, pp. 84-86.) (2) where by reason of brain injury the party suffers from retrograde amnesia and cannot remember and testify concerning his conduct at and immediately before the accident. (Scott v. Burke, 39 Cal.2d 388 [247 P.2d 313]; Kumelauskas v. Cozzi, 173 Cal.App.2d 541 [343 P.2d 605]; McBaine, Cal. Evidence Manual, supra; Witkin, Cal. Evidence, supra.) The mere fact of minority does not entitled [sic] plaintiff Victor to the benefit of the presumption.
“The second argument advanced is that plaintiffs were entitled to the instruction on due care because plaintiff Victor was prevented from testifying about the circumstances of the accident by reason of a brain injury received in the accident and plaintiffs produced no eyewitnesses’ testimony concerning the accident.
“What is stated in the case of Coe v. Southern Pacific Co., 203 Cal.App.2d 509, at page 516 [21 Cal.Rptr. 731], is pertinent with respect to the unusual factual situation presented in the ease at bar:
“ ‘The philosophy which permits the presumption to be considered is, that when the person whose conduct is in question is unable to testify due to death, loss of memory or other circumstances beyond his control, the law provides testimony for him by the presumption of due care. To allow the tise of the presumption where the person merely does not choose to testify would be illogical and contrary to the reasons for its use. Thus the driver of an automobile involved in an action, who, if he testified would have to admit that he was completely at fault, could merely refrain from testifying and then have the benefit of the presumption that he was not at fault. ’ (Italics added.)
“The case at bar presents the unusual situation of where the attorney for plaintiffs refused to place the minor plaintiff on the stand. Rather, plaintiffs attempted to lay the foundation for the presumption solely with medical testimony. The reason for this refusal was stated by plaintiffs’ attorney as follows:
“ ‘Mr. Cohen: . . . But I might point out, your Honor, that our whole theory of this case is that it is a presumption ease and that Victor is entitled to the presumption.
“ ‘Now, our problem in calling Victor is, one, at the time of the accident he was only six years old; and, two, as his [402]deposition shows, he will state at varying times that he either can’t recall it or he will make up a story about it.
“ ‘He told in his deposition, I believe, three or four different stories, all conflicting, and he has told me on separate occasions that he can’t remember it.
“ ‘Now, under these circumstances it’s impossible for us to call the boy because we can’t vouch for his testimony, and unless we can lay the foundation for the presumption through the doctor, our main theory of this case is gone.’ (Italics added.)
“The minor plaintiff was available so that it was not impossible for plaintiffs’ attorney to call him as a witness. On the contrary, plaintiffs even suggested that defendants call the minor plaintiff as a witness.i [3] The case of Hughes v. City & County of San Francisco, 158 Cal.App.2d 419 [322 P.2d 623], relied upon by plaintiffs is not apposite. In the Hughes case it would appear that it was impossible for plaintiff to have testified at the trial. The court stated at page 420 that:
“ ‘. . . Her mental deterioration came on about the time of her second fall and may have been due to her physical condition or her age. She could not appear or testify by deposition at either trial. ’
“It was incumbent upon plaintiffs to lay the necessary foundation before they were entitled to the presumption. The trial court did not err.
"In addition to what has already been stated there is another separate reason why plaintiffs were not entitled to have their proffered instruction given. Neither side to the within appeal raised the issue but it is established that the trial court has the right to refuse an instruction, erroneous on its face, without modifying it. (See cases cited 42A West’s Cal. Dig., Trial, § 261, pp. 388-393.)
“An instruction on the presumption of due care which was substantially similar to that proffered by plaintiffs was held to be erroneous in Kumelauskas v. Cozzi, 173 Cal.App.2d 541 [403][343 P.2d 605]. The proper instruction is set forth in 1 B.A.J.I. No. 135-B (New).
“Lastly, plaintiffs assert that ‘Irrespective of the Applicability of the Presumption of Due Care, a Party who Does Not Appeal [sic] and Testify at the Trial May Introduce Medical Testimony Concerning the Reason for His Non-Appearance. ’
“Plaintiffs cite and rely upon the ease of Ray v. Henderson, 212 Cal.App.2d 192 [27 Cal.Rptr. 847], In the Bay case, as in the case at bar, the deposition of the party had been taken prior to the trial. At the trial, the defendant, whose deposition had been taken, did not testify. His physician testified that the defendant was suffering from an inoperable cancer of the stomach, had suffered from a heart attack, and was in such physical condition that, if the defendant were to testify it might produce an acute heart failure or another heart attack which would imperil his life. The deposition of defendant was then read in its entirety. The court concluded that the doctor’s testimony with reference to the peril which might be encountered if the defendant took the stand was proper.
‘ ‘ The Ray case is in nowise similar to the case at bar. The deposition of plaintiff Victor was never read at the trial. There is nothing in the testimony of either of plaintiffs’ expert witnesses which would indicate that the minor plaintiff was unable to testify at the trial. The objection was sustained to the question of whether the psychiatrist had an opinion as to whether Victor could recall the accident and the circumstances preceding it—not to whether Victor was physically able to testify at the trial.”
"This is the second appeal from a judgment in favor of defendants. The ease was originally tried before a jury. The cause was reversed on appeal solely upon the ground that an erroneous instruction had been given by the trial court. (Brown v. Connolly, 206 Cal.App.2d 582 [24 Cal.Rptr. 57].) ”
"The law presumes that Victor Brown in his conduct at the time of and immediately preceding the accident was exercising ordinary care and was obeying the law.
“ ‘This presumption is a form of evidence. It will support a finding in accord with the presumption where there is no proof to the contrary; and it will support such a finding in the face of contrary evidence if your judgment so directs after weighing the conflicting evidence.
“ ‘When such a conflict exists, it is the jury’s duty to weigh the presumption and any evidence that may support it against the contrary evidence and to determine which, if either, preponderates. Such deliberations, of course, shall be related to and be in accordance with my instructions on the burden of proof. ’ ”
"The Reporter’s Transcript discloses the following in pertinent part:
“ ‘Mr. Gilliland: We don’t have any testimony that the boy doesn’t remember it.
“ ‘Mr. Cohen: Where can the testimony come from? We can’t—
“ ‘Mr. Gilliland: From the boy.
“ ‘Mr. Cohen: You put the toy on.
“ ‘The Court: If you want the benefit of the presumption, why, of course, you are the one that has to establish the basis of the amnesia.
“ ‘I am going to sustain the objection.
“ ‘Mr. Gilliland: Thank you, your Honor.' (Italics added.) ”