On July 3, 1948, plaintiff was operating an automobile in a southerly direction on U. S. 101 in Monterey County and defendant Patton was operating a Chevrolet panel truck owned by defendants Andersen in a northerly direction. Each party was the sole occupant of his respective vehicle. As a result of a collision between the said automobile and truck plaintiff sued all of said defendants for personal injuries and defendant Patton filed a cross-complaint against plaintiff for personal injuries. Thereafter plaintiff dismissed as to defendants Andersen and issue was joined solely between plaintiff and defendant Patton.

After the accident both cars came to rest in the southbound lane and both cars were pointed south. The Patton car had its left rear corner about four feet west of the center line, and there was a pile of debris in the southbound lane directly behind the Patton ear. There were deep scars, beginning on the west edge of the southbound paved portion of the highway, extending approximately 30 feet in a southwesterly direction and terminating under the broken knee-action of the left front wheel of the Russell car, which had come to rest beyond the west edge of the shoulder of the southbound lane.

No other gouge or skid marks, or debris, were found on the southbound lane, and no gouge or skid marks, or debris, were found at all on the east, or northbound, lane.

Upon the trial plaintiff called defendant under section 2055, Code of Civil Procedure, and defendant testified as to his version of how the collision occurred. Plaintiff also called witnesses Larson and Betts, highway patrol officers who went to the scene after the accident occurred. Plaintiff himself testified but it seems quite clear from the record, as stated a number of times during the trial by counsel for defendant, that he had no recollection of how the accident occurred. The only other witnesses called by plaintiff were the doctor who testified to the extent of the plaintiff’s injuries and a medical technologist.

Defendant called two witnesses besides himself, one being an asserted eyewitness and the other testifying how plaintiff was operating his automobile a few miles north of where the collision occurred.

The jury rendered a verdict that neither party recover against the other. Plaintiff’s motion for a new trial was denied and this appeal is from the judgment in favor of defendant.

The principal ground urged by plaintiff and appellant for a reversal of the judgment is that the court erred in refusing to give the following instruction offered by him:

Appellant states that the preliminary question to be answered on this appeal is:

Respondent, however, does not agree that the preliminary question on appeal is as stated by appellant but states that such preliminary question should be:

It is therefore necessary at the outset to determine whether or not appellant, by reason of loss of memory, was unable to testify respecting his conduct at and immediately before the time of the accident. It is apparent that as to this question respondent is taking an entirely different position upon this appeal than he did at the trial for the record shows that upon his motion for a nonsuit respondent’s counsel stated: “There is no evidence by plaintiff’s own testimony as to how the accident happened ... I think that the plaintiff in clarifying his own testimony made it obvious that he remembered nothing of the accident or the circumstances of it . . . The only evidence which has been introduced at all as to what happened in this accident was the testimony of the defendant having been called under 2055.”

And during the cross-examination of appellant by respondent’s counsel the following occurred:

In view of the fact that the record fully supports the statements of counsel for respondent and the trial judge that the testimony of appellant showed that he suffered a loss of memory as to how the accident happened, it is difficult to understand how respondent can argue seriously upon this appeal that appellant “was well able to and did testify to the material facts of the accident and was not suffering from a loss of memory.”

We believe, therefore, that we must determine the question of whether or not appellant was entitled to the benefit of the disputable presumption that he was exercising due care upon the basis that the record shows that appellant by reason of loss of memory was unable to testify respecting his conduct at or immediately before the time of the accident and produced no witnesses to testify to such facts.

The presumption here under consideration is set forth in subdivision 4 of section 1963 of the Code of Civil Procedure as follows:

The foregoing presumption was considered in the now famous case of Smellie v. Southern Pacific Co., 212 Cal. 540 [ 299 P. 529 ]. That was a case arising out of the death of one Smellie when the truck in which he was riding, which was being operated by one Ireland, was struck at a railroad crossing in the city of Madera by one of defendant company’s trains. One defense was contributory negligence of the de ceased. Plaintiff put Ireland, also a defendant, upon the witness stand under section 2055, and upon cross-examination by counsel for his codefendant, Southern Pacific Company, Ireland testified that the deceased said, just before going onto the track, “It’s all clear, let’s go.” This evidence was not contradicted by any witness. The trial judge directed a verdict in favor of defendants. Upon appeal our Supreme Court reversed the judgment, and in the course of its opinion said at page 549:

The court went on to hold that the plaintiff was entitled to benefit of said presumption and also that the testimony of a defendant called as a witness by plaintiff under Code of Civil Procedure, section 2055, was not to be regarded as evidence of the plaintiff and did not as a matter of law dispel or overcome the presumption that the deceased exercised due care for his own concern. The court said at page 559:

In Westberg v. Willde, 14 Cal.2d 360 [ 94 P.2d 590 ], the court held that the principle enunciated in the Smellie ease applied to a death case when eyewitnesses testified for each side. In that case plaintiffs were suing for damages for the death of their son who was killed in an automobile accident involving a car driven by himself and a truck owned and operated by the defendants. Plaintiff produced three eyewitnesses to the accident while the defendant driver was the only eyewitness for the defense. In view of the fact that the plaintiff had produced eyewitnesses to the accident defendants upon appeal complained of the trial court’s giving the following instruction:

In holding that there was no error in giving said instruction the court said at page 364:

The rule of the Smellie case and of Wesfberg v. Willde has been applied in a number of later cases where plaintiff was not killed in the accident but suffered loss of memory as a result thereof. In the case of Scott v. Sheedy, 39 Cal.App.2d 96 [ 102 P.2d 575 ], (hearing denied), the exact instruction offered and refused in the instant case was approved. The court said at page 99:

In Hoppe v. Bradshaw, 42 Cal.App.2d 334 [ 108 P.2d 947 ] (hearing denied) the court said at page 339:

And in Simon v. City & County of San Francisco, 79 Cal.App.2d 590 [ 180 P.2d 393 ] (hearing denied) the court said at page 598:

See, also, Douglas v. Hoff, 82 Cal.App.2d 82, 85 [ 185 P.2d 607 ].

Respondent in reply quotes from Roselle v. Beach, 51 Cal.App.2d 579 where the court said at page 583 [ 125 P.2d 77 ]:

Respondent also cited Speck v. Sarver, 20 Cal.2d 585 , in which the court said at page 587 [ 128 P.2d 16 ]:

Respondent also cited Barker v. City of Los Angeles, 57 Cal.App.2d 742 , where the court said at page 749 [ 135 P.2d 573 ]:

None of the three last cited cases support respondent’s contention that the offered instruction was properly refused because in the instant case the facts concerning the happening of the collision were not fully covered by plaintiff’s witnesses. On-the contrary, no witnesses who saw the accident were produced by plaintiff and in view of the fact that there was ample evidence to justify the conclusion that appellant was deprived of his memory because of injuries received in the accident, we believe that, under the authorities herein-before set forth, appellant was entitled to the benefit of the presumption and that the trial court erred in refusing to give such an instruction.

It is not necessary to discuss the question of whether, upon the record in the instant case a presumption of due care was dispelled by facts “wholly irreconcilable” with the presumption, because respondent states quite frankly in his brief that he makes no such contention but contends “rather that plaintiff having testified as to the material facts of the accident was never entitled to a presumption of due care in the first place,” a rather surprising contention in view of the fact that counsel for respondent first in the presence of the jury, and, later, upon a motion for a nonsuit, stated and contended that it was obvious that appellant “remembered nothing of the accident or the circumstances of it.”

Respondent also contends that the essential elements of an instruction on the disputable presumption of the exer p-ising of due care are contained in the general instructions given by the court defining presumptions and inferences and stating that among disputable presumptions are these: 11 That a person is innocent of crime or wrong.” “That things have happened according to the ordinary course of nature and the ordinary habits of life.” (Code Civ. Proc., § 1963, subds. 1, 28.)

The instructions quoted by respondent are, of course, stock instructions given in every civil case and are taken from the Code of Civil Procedure. Mere general instructions as to the nature and effect of presumptions and inferences can hardly be regarded as a sufficient substitute for a specific instruction on the presumption that a person takes ordinary care of his own concerns. (Code Civ. Proc., § 1963, subd. 4.)

Respondent’s final contention is that even if it would have been proper for the trial court to have given the offered instruction, it was not reversible error to have refused to give it. Respondent, of course, relies upon section 4% of article VI of our state Constitution.

As was said in Bieser v. Davies, 119 Cal.App. 659 at page 664 [ 7 P.2d 388 ]:

And in Herbert v. Lankershim, 9 Cal.2d 409 , our Supreme Court said at page 476 [ 71 P.2d 220 ]:

In the instant case plaintiff and appellant produced evidence tending to show that the accident occurred on appellant’s side of the highway and that respondent’s car had come to rest with its left rear corner about 4 feet west of the center line, and there was a pile of debris in the southbound lane directly behind respondent’s car, which had obviously dropped from respondent’s car on the impact. There were deep scars, beginning on the west' edge of the southbound paved portion of the highway, extending approximately 30 feet in a southwesterly direction and terminating under the broken knee-action of the left front wheel of appellant’s ear, which had come to rest beyond the west edge of the shoulder of the southbound lane. No other gouge or skid marks, or debris, were found on the southbound lane, and no gouge or skid marks, or debris, were found at all on the east, or northbound lane.

Respondent produced evidence tending to show that appellant had swung into respondent’s lane, and that then both cars had cut back to appellant’s lane where the crash occurred. A careful reading of the entire record convinces us that a verdict for either party would find support in the evidence. In fact the jury did find for respondent on appellant’s complaint and for appellant on respondent’s cross-complaint. We have already held that the court erred in refusing to give the offered instruction as to the presumption of due care, and we are convinced that upon the entire record in this case, the depriving of appellant of the benefit of such presumption was prejudicial error requiring a reversal of the judgment. Applicable to the instant case is the language of our Supreme Court in the recent case of Satterlee v. Orange Glen School Dist., 29 Cal.2d 581 at p. 593 [ 177 P.2d 279 ]:

The judgment is reversed.

Nourse, P. J., and Dooling, J., concurred.