Menchaca

This is an action by plaintiffs Richard and Barbara Menchaca for damages resulting from the wrongful death of their 22-month-old son, Richard Menchaca, Jr., who was killed when run over by a bakery truck operated *539 by an employee of defendant Helms Bakeries. Helms denied its negligence and asserted the contributory negligence of the child’s mother, Barbara Menchaca. The trial resulted in a jury verdict for defendant, and plaintiffs’ appeal.

We shall explain why we have concluded that the court committed prejudicial error in (1) directing the jury that there was no evidence that the truck was negligently equipped, (2) refusing an instruction describing the statutory duty of a driver to sound his horn, and (3) rejecting an instruction on the general duties involved in the exercise of due care. On the other hand, we find no error in the court’s refusal to give an instruction requiring that the driver exercise extreme caution. Nor does the record demonstrate prejudicial error in defense counsel’s reference to matters within his personal knowledge; if any misconduct occurred, it was promptly corrected by the trial court.

On the day of the accident, defendant’s employee, driving…

I dissent. The instruction requested by plaintiffs on the sounding of a horn was this: 1 ‘ California Vehiele Code, Section 27001, in effect at the time of the accident, provided in relevant part as follows: ‘ The driver of a motor *546 vehicle, when reasonably necessary to insure safe operation shall give audible warning with his horn. ’ ’ ’ The requested instruction failed to quote the last sentence of the code section, which specifies that “The horn shall not otherwise be used. ’ ’

As stated by Presiding Justice Piles in the opinion prepared by him for the Court of Appeal, Second District, Division Pour, when this case was before that court ( 64 Cal.Rptr. 49 , 51-52 [2]), the statute, read as a whole, indicates that the horn is not to be used unless some particular circumstance calls for it. To tell the jury that the first sentence of the section alone is the “relevant part” would be misleading- in the context of this ease. The driver testified that he saw five children approach the truck, the two Blanchard children and two Menehaea children, sisters of the deceased Richard, and another little girl whom he saw go home; that he observed that all four Blanchard and Menehaea…