This action was commenced to recover damages for personal injuries sustained by plaintiff as a result of the collision of his automobile with a bus owned by defendant Glendale City Lines, Inc., and operated by defendant R. A. Murphy. From a judgment in favor of plaintiff entered upon the verdict of a jury defendant Glendale City Lines, Inc., prosecutes this appeal.

The accident occurred at about 11:20 p. m. on the evening of January 2, 1944, at the intersection of Glen Oaks Boulevard and Concord Street in the city of Glendale. Glen Oaks Boulevard, a through arterial highway running in an easterly and westerly direction, consists of two paved 60-foot roadways separated by curbs from an elevated 40-foot private right-of-way of the Pacific Electric Railroad. Concord Street runs north and south and is approximately 40 feet wide. Traffic entering Glen Oaks Boulevard from intersecting streets, including Concord Street, was required to stop before proceeding into Glen Oaks Boulevard. The railroad tracks between the roadways of Glen Oaks Boulevard were approximately five feet higher than the roadways themselves, the rise from the north edge of the right-of-way to the north track covering a distance of 20 to 25 feet and the drop from the south track to the south edge of the right-of-way occurring within a distance of 9 or 10 feet.

Appellant urges first, that the evidence was insufficient as a matter of law to support the finding that the bus driver was guilty of negligence; second, that plaintiff was guilty of contributory negligence as a matter of law; and third, that the court committed prejudicial error in refusing certain instructions proffered by defendant.

Plaintiff testified that on the evening in question he was driving his 1942 Plymouth coupe east on Glen Oaks Street; that when he was about 200 feet from the west curb line of Concord Street he noticed headlights approximately 40 feet from the streetcar tracks on the north side of Glen Oaks. It was raining and plaintiff’s windshield wiper was operating. The bus was moving at approximately five miles per hour or less. Plaintiff was driving between 25 and 30 miles per hour and did not change speed at any time before the accident. When he next saw the bus plaintiff was from 28 to 30 feet west of the curb line of Concord Street, at which time it seemed to speed up and “dart kind of right in front of me,” coming down the incline from the tracks. He estimated the speed of the bus at that moment at 15 to 20 miles per hour. He estimated the interval between the time he first saw the bus at 200 feet and when he noticed it for the second time at three seconds. He further testified that during the estimated three second interval “I was watching right ahead. It was raining and bad driving conditions, and I noticed to the right, to the east, that there was a traffic.” He further testified as follows:

Plaintiff did not recall whether the inside lights of the bus were on; he was unable to determine from the bus lights whether it was a bus or a passenger car. He estimated that the right side of the bus was about 15 feet from the right edge of Concord Street and that the bus traveled about 20 feet from its position where he saw it for the second time and the point of impact.

On cross-examination plaintiff placed his position when he saw the bus the second time at 57 feet from the point of impact. The following testimony of plaintiff on cross-examination is quoted by appellant in support of its contention that plaintiff was guilty of contributory negligence as a matter of law:

Further in,.support of its contention with respect to contributory negligence, appellant quotes the testimony of a police officer as to plaintiff’s testimony with reference to the accident at a hearing in the municipal court, as follows: “He was asked when and where he observed the bus and how far away he was, to which he said he was about 200 feet back from the intersection and the bus was on the railroad track and he did not notice the bus again until he struck it.”

At the time of the trial the driver of the bus was in military service. His testimony was introduced by deposition. He testified that the headlights, the inside lights, clearance lights and taillights of the bus were on; that the bus was colored yellow and white; that at the time of the collision the bus was traveling 3 or 4 miles per hour in low gear; that he made a complete boulevard stop before entering Glen Oaks Boulevard and another stop before crossing the tracks. He stated that he noticed plaintiff’s headlights when he made the boulevard stop and that the plaintiff was then approaching or at a boulevard stop on Glen Oaks a quarter of a mile west of the scene of the accident. He further testified as follows: •

Plaintiff also testified that he made a series of tests at the intersection of Concord Street and Glen Oaks Boulevard and that it was not possible to see the intersection to the west from the point where the bus driver claimed to have seen it, due to the curve of the roadway of Glen Oaks, palm trees and other obstructions.

In contending that the driver of the bus was not guilty of negligence, appellant states: “The only question remaining is: Where there is no evidence that the Plymouth was less than a quarter of a mile away when the bus came to a full boulevard stop before entering the highway, and where the evidence shows that the bus already proceeded some distance into the intersection when the Plymouth was still more than two hundred (200) feet away on an arterial highway, is there sufficient evidence that the Plymouth constituted an ‘immediate hazard’ as that term is used in the Vehicle Code?”

Section 552 of the Vehicle Code reads as follows:

Appellant’s argument, in short, is that although the highway was divided, nevertheless the entire crossing constituted but one intersection; that the driver of the bus made the required stop at a time when the plaintiff (according to the driver) was a quarter of a mile away; that therefore plaintiff’s vehicle did not constitute an “immediate hazard,” and the bus driver was not guilty of negligence in proceeding across the intersection. Further, argues appellant, negligence cannot be predicated upon the bus driver’s act in going ahead after seeing plaintiff’s car 200 feet away at a time when the bus was either at or on the tracks. The same facts are urged as showing that plaintiff was guilty of contributory negligence as a matter of law in failing to observe what was in plain view and in failing to yield the right of way when at a distance of 200 feet he saw the bus upon the tracks. Appellant concedes that, in ordinary circumstances, the question of whether a vehicle constitutes an “immediate hazard” is one for the trier of fact (Zwerin v. Riverside Cement Co., 52 Cal.App.2d 715, 718 [ 126 P.2d 920 ] and eases therein cited), but cites Fisher v. Wichita Transp. Corp., 156 Kan. 500 [ 134 P.2d 393 ], in support of the argument that in a situation such as is here presented the question becomes one of law. In the cited ease, a jury found that an oncoming automobile 150 feet away constituted an “immediate hazard” to a bus about to make a left turn. The Kansas court held that it was not and directed that judgment be entered for defendant.

The situation here presented, however, does not warrant the substitution of this court’s views for those of the jury. In the Kansas case the jury made a special finding that the distance was 150 feet and a further'finding that at such distance plaintiff’s vehicle constituted an immediate hazard. In the present case the elements of speed, distance and position of the respective vehicles at given times were to some extent in dispute. The testimony of plaintiff and defendant bus driver as to the movements of the bus were in conflict. If the jury, as it had a right to do, chose to place credence in plaintiff’s version of the accident, it might well have concluded that the bus was stopped, or moving very slowly at the tracks when plaintiff first saw it at a distance of 200 feet. To make a left turn at an ordinary intersection in front of a vehicle 150 feet away is one thing; it is quite another situation when the driver of a 30-foot bus, starting from a standstill in low gear, attempts to cross a railroad track, go down an incline and clear a 60-foot roadway, in front of a vehicle 200 feet away and moving, according to the driver’s own estimate, at not less than 35 miles per hour. It must be assumed that the jury believed the testimony of the plaintiff that the bus suddenly increased its speed, thrusting it in front of him so quickly that he was unable to stop before striking it. In these circumstances, the fact that the bus driver made the boulevard stop and also a stop at the railroad tracks did not absolve him from his continuing duty to use due care. “. . . The law is also well settled that if it should appear to the mind of any reasonable person that the vehicle approaching the intersection on the arterial highway is near enough to constitute an immediate danger, and under those conditions the driver of the other vehicle attempts to enter or cross the arterial, he is negligent in so doing even though he was the first to arrive at or enter the intersection. ’ ’ (Pattisson v. Cavanagh, 18 Cal.App.2d 123, 127 [ 63 P.2d 868 , 64 P.2d 945 ].)

Likewise, bearing in mind that the jury was entitled to accept plaintiff’s version as to how the accident occurred, its conclusion that he was not guilty of contributory negligence must be upheld. It is well established that the question of contributory negligence is primarily one of fact for the jury and becomes a question of law only in rare instances. The language in Granath v. Andrus, 70 Cal.App.2d 99, 102, 103 [ 160 P.2d 129 ], is particularly applicable to the situation here presented. The court there said:

Likewise illustrative of the rule that the question of plaintiff’s negligence in assuming that the bus would yield the right of way or in not maintaining a constant lookout as he approached the intersection was one for the jury is the ease of Breland v. Traylor Eng. etc. Co., 52 Cal.App.2d 415, 422, 423 [ 126 P.2d 455 ]. It was there said:

Finally, appellant predicates error upon the refusal of the court to give certain proffered instructions. The refused instructions were as follows:

It is also asserted that, because the jury had the task of drawing inferences from established facts, it was error to refuse defendant’s proffered instruction on the distinction between direct and indirect evidence.

Appellant’s showing of prejudicial error with respect to the refused instructions must be held insufficient, under article VI, section 4% of the California Constitution, to warrant a reversal. The first proffered instruction, on the duty to look carefully for approaching traffic, was objectionable, in that it singled out the plaintiff alone for application of the rule. The instruction that one is presumed to see that which is in plain sight had no particular application to the present ease, as each driver admitted seeing the other vehicle. The instructions given by the trial court, when considered in their entirety, adequately covered the issues presented, including the questions of right-of-way, “immediate hazard,” preponderance of evidence, burden of proof, neg ligence and contributory negligence. It cannot be said, in view of the entire charge to the jury, that a different verdict might have ensued had the proffered instructions been given or that the error, if any, resulted in a miscarriage of justice.

The attempted appeal from the order denying motion for new trial is dismissed.

The judgment is affirmed.

York, P. J., and Doran, J., concurred.