From an order granting a new trial after the jury had returned a verdict in favor of defendant, defendant appeals. There is also a cross-appeal by plaintiff from the judgment entered on the verdict of the jury.

Facts: This action was instituted for the recovery of damages resulting from injuries sustained in an accident.

Nadeau Street is 37 feet wide and runs east and west, while Morton Avenue is 40 feet wide and runs north and south and into Nadeau from the south but does not continue north of Nadeau. Thus the streets form a T intersection at the scene of the accident.

Plaintiff minor shortly before the accident had dropped a letter in a mailbox at the northwest corner of Nadeau and Bell Avenue, which is one block west of the intersection of Nadeau and Morton. Plaintiff then proceeded in an easterly direction on the northerly side of Nadeau until she reached a point about five feet east of the easterly curb line of Morton, at which point she intended to cross Nadeau from the northeast portion of the intersection to the southeast corner in an unmarked crosswalk which measures 10 feet in width. Before she started to cross the street she looked to the east and to the west on Nadeau. When she looked to the west she saw some eastbound traffic on Nadeau about a block away. Plaintiff proceeded to cross the street ahead of a westbound car in a straight southerly direction at a fast walk, and, according to her testimony, in an unmarked crosswalk. She stopped and again looked to the west on Nadeau for eastbound traffic. When she was at the center of Nadeau she then saw defendant’s automobile about 100 feet from her traveling about 35 miles per hour in an easterly direction. She observed that when defendant’s automobile got about one-half a car length west of Morton, it started to veer to the south and gave the appearance that it was going to turn south on Morton. Plaintiff then looked south in front of her and took two or three fast steps ahead. Looking west again on Nadeau she saw defendant’s automobile which was about a foot or two away from her. She tried to leap out of the way, but it struck her, hurling her to the pavement causing her serious personal injuries.

Defendant testified: he saw plaintiff when she was approaching but not when she had reached the center of Nadeau; she was moving at a hurried pace; when he approached the west curb line of Morton he slowed down to between 20 and 25 miles per hour, applied his brakes and swerved to the south in an endeavor to avoid hitting her.

The jury returned a verdict in favor of defendant. The trial court granted plaintiffs’ motion for a new trial on the ground that it had erred in giving an instruction on unavoidable accident.

A. Defendant’s Appeal

First: Did the trial court err in granting plaintiffs’ motion for a new trial?

Yes. The law is settled where as in the instant case defendant denies negligence it is not error to give the jury an instruction on the doctrine of unavoidable accident. (Covely v. C.A.B. Construction Co., 110 Cal.App. 30, 33 [6] [ 242 P. 2d 87 ], Cf. Parker v. Womack, 37 Cal.2d 116, 122 [9] [ 230 P.2d 823 ].)

Second: May the trial court’s order granting the motion for a new trial he sustained on the ground that (a) the evidence was insufficient to support the verdict of the jury, or (h) defendant was guilty of negligence as a matter of law?

No. The minute order read as follows: “The motion for a new trial in this matter is granted upon the ground that the Court at the defendant’s request erroneously gave instruction No. 24, Book of Approved Jury Instructions, on unavoidable accident when there was no evidence produced to justify such instruction.”

Section 657 of the Code of Civil Procedure reads in part:

In the present case, since the minute order did not state that it was granted on the ground of the insufficiency of the evidence, and there was evidence that plaintiff was not in a marked or unmarked crosswalk at the time of the accident, there is no merit in plaintiffs’ contention that defendant was negligent as a matter of law.

Third: Was defendant’s counsel guilty of prejudicial misconduct in asking that a witness he examined out of order?

No. While plaintiff was still presenting his case the trial judge stated he would not continue the court session beyond 4:15 p.m. that day. It was then seven minutes to 4 p.m. In the presence of the court and jury counsel for defendant stated the witness Rogers had a business he had to close down and it would be quite an imposition for him to come back the next morning, and requested he be placed on the stand out of order. Counsel for plaintiffs objected to this procedure and stated the cross-examination would take not less than 15 or 20 minutes and he did not want to be foreclosed by shortness of time. The trial judge granted counsel for defendant’s request and allowed defendant’s witness to testify out of order. Counsel for plaintiffs cross-examined the witness and at the time court adjourned, counsel for defendant said: “May I inquire if counsel will require Mr. Rogers to be back, if he has a sufficiently lengthy cross-examination to require him to give up his real work again.”

Plaintiffs’ counsel then stated to the court that he was placed in a very embarrassing position in that it was made to appear he was keeping the witness from going to work. The court thereupon ordered all witnesses to return the following day.

Clearly plaintiff has failed to show wherein she suffered any prejudice by the trial court’s permitting the witness to be examined out of order.

Fourth: Did the trial court commit prejudicial error in receiving the verdict of the jury?

No. After deliberating, the jury returned to the courtroom and the following occurred:

(Upon the completion of the polling of the twelfth juror, the clerk again read the verdict, whereupon the following proceedings occurred) :

It is evident that Mrs. Schieber voted in the jury room in favor of defendant and the procedure followed by the trial judge was not prejudicial to plaintiff. Hence there was no error in the trial court’s not sending the jury out for further deliberation.

In view of the fact there was no sound basis for the order granting plaintiffs’ motion for a new trial it must be reversed.

B. Plaintiffs’ Appeal

First: Was there substantial evidence to sustain the judgment in favor of defendant?

Yes. By the evidence, which supported the facts stated above, the trial jury had been presented the issue of fact as to whether or not defendant was negligent. From such evidence the trial jury may have found that the accident was an unavoidable one or that defendant was not negligent. In either event the verdict in favor of defendant would be supported by the evidence and this court under the familiar rule is bound by the findings of the trier of fact where there is any substantial evidence to sustain its finding.

The order granting the motion for a new trial is reversed; the judgment in favor of defendant is affirmed.

Moore, P. J., and Fox, J., concurred.

Plaintiffs and appellants’ petition for a hearing by the Supreme Court was denied December 15, 1952. Shenk, J., and Carter, J., were of the opinion that the petition should be granted.