This is an appeal from an order granting a new trial. The order did not specify that the motion was granted because of the insufficiency of the evidence to sustain the verdict of the jury in favor of the defendants. (Code Civ. Proc., sec. 657.)

Defendant Fresno City Lines, Inc., is a common carrier of passengers for hire, and Buck Storey was one of its drivers. Eva H. Nance, wife of Charles A. Nance, was a passenger in one of the buses on December 30, 1939, and had paid her fare. The bus was proceeding north on Fulton Street in the city of Fresno and while in the intersection of Fulton and Mono Streets, Storey, the driver, applied the hydraulic brakes with vacuum boosters, with which the bus was equipped, which caused it to stop suddenly. Mrs. Nance was thrown from her seat and injured.

The jury returned a verdict for defendants. The trial court granted plaintiffs' motion for a new trial and this appeal followed.

Counsel argue the effect of several instructions given to the jury at the request of defendants. The quotation of two of these instructions will serve to illustrate the errors involved. We quote as follows:

These instructions disregard the rule establishing the degree of care required of common carriers of persons for hire as stated in section 2100 of the Civil Code:

An instruction quite similar to the first one we have quoted was given to the jury in the case of Frost v. Los Angeles Ry. Co., 165 Cal. 365 [ 132 Pac. 442 ], There, as here, the jury returned a verdict for defendant and the trial court granted a motion for new trial. The order was affirmed on appeal. In speaking of the instruction, the Supreme Court said:

In the case of Bosqui v. Sutro Street R. R. Co., 131 Cal. 390 [ 63 Pac. 682 ], the defendant, a common carrier, requested the trial court to instruct the jury in much the same language as that used in the second quoted instruction. The trial court modified the instruction by stating that it was the duty of a common carrier of passengers to use the utmost care or the care which an extremely cautious man would have used under like circumstances. The Supreme Court held that the modified instruction correctly stated the law in California.

Instructions on contributory negligence required Mrs. Nance “to keep such a lookout and to make such observations as an ordinarily careful and prudent person would have done” under the circumstances and that if she failed in that duty, and such failure on her part contributed proximately to her injury, then the verdict must be for defendants.

This instruction placed a higher duty of care on Mrs. Nance than the law requires of a passenger riding in a common carrier of persons for hire, by failing to take into consideration the high degree of care a common carrier owes to its passengers. (Dowd v. Atlas T. & A. Service, 187 Cal. 523 [ 202 Pac. 870 ].)

Defendants argue that in other instructions, particularly those proposed by plaintiff, the jury was correctly instructed on the questions we have been considering; that the instructions must be considered in their entirety; that the “minor errors” in the instructions proposed by defendants could not have misled the jury.

While there are many eases supporting the rule contended for by defendants, especially in cases where a defendant’s motion for new trial had been denied, we are also confronted by another rule equally well established which is applicable here. It is thus stated in Ferguson v. Nakahara, 43 Cal. App. (2d) 435 [ 110 Pac. (2d) 1091 ]:

Defendants also urge that as the great preponderance of the evidence showed that Storey was not negligent, the trial court committed prejudicial error in granting the motion for a new trial because a reading of the record demonstrates that no miscarriage of justice resulted from the judgment in their favor. (Sec. 4½, art. VI, Const.)

Witnesses for defendants testified that the bus was traveling north on Fulton Street at between fifteen and eighteen miles an hour; that an automobile was traveling south in the west traffic lane; that after the bus entered the intersection, and without giving any signal, the automobile driver suddenly turned to his left, cut the corner in front of the bus and proceeded easterly down Mono Street; that to avoid running down the automobile Storey had to apply his brakes and stop the bus suddenly. From this it is argued that the proximate cause of the accident was the negligence of the driver of the automobile and that no negligence on the part of Storey was proved. It must be admitted that a majority of the witnesses testified to these facts.

On the other hand, there is the evidence produced by the plaintiffs that the intersection was obstructed (Veh. Code, sec. 511); that the bus was traversing the intersection at a speed of between thirty and thirty-five miles an hour; that no automobile passed in front of the bus in the intersection.

It is well established that, in passing on a motion for a new trial, a trial judge is as firmly bound by this constitutional provision as is an appellate court when the cause is on appeal. It is his duty to sit as a thirteenth juror and weigh the evidence, pass upon its sufficiency and consider the credibility of witnesses. This is true even though he does not specify the insufficiency of the evidence as one of the grounds for granting a new trial because the Constitution contains the direction that he shall not grant a new trial because of errors in instructions to the jury until he has reexamined the entire cause and shall have formed the opinion that the errors complained of have resulted in a miscarriage of justice. (Sec. 4½, art. VI, Const.; Olinger v. Pacific Greyhound Lines, 7 Cal. App. (2d) 484 [ 46 Pac. (2d) 774 ]; Clippinger v. Reiss, 17 Cal. App. (2d) 604 [ 62 Pac. (2d) 418 ]; Sassano v. Roullard, 27 Cal. App. (2d) 372 [ 81 Pac. (2d) 213 ].)

In considering a similar question in Beiser v. Davies, 119 Cal. App. 659 [ 7 Pac. (2d) 388 ], this court said:

In view of these well recognized principles of law we cannot say that the evident conclusion of the trial judge that the erroneous instructions resulted in a miscarriage of justice finds no support in the record even though a study of the record here leaves the conclusion that the evidence preponderates in favor of the defendants. Under these circumstances we do not feel disposed to reverse the order granting the new trial.

The order is affirmed.

Barnard, P. J., and Griffin, J., concurred.

A petition for a rehearing was denied June 9, 1941, and appellants’ petition for a hearing by the Supreme Court was denied July 14, 1941.