Borg

Plaintiff, walking along the Bay-shore Highway in a northerly direction, was hit by defend *261 ant’s automobile which was traveling in the same direction. Upon this appeal from an adverse judgment plaintiff assigns prejudicial error in the giving and refusing of instructions. Our examination of the record convinces us that the giving of an instruction on unavoidable accident * was prejudicially erroneous, under the holding in Butigan v. Yellow Cab Co., 49 Cal.2d 652 [ 320 P.2d 500 , 65 A.L.R.2d 1 ], a decision filed on the next to the last day of the trial herein.

The Facts

The section of highway involved had four lanes divided into two southbound and two northbound lanes. The outer northbound lane had an asphalt surfaced shoulder about 6 feet wide, bordered by an unimproved dirt shoulder about 25 feet wide. Plaintiff testified that he was walking north along the dirt shoulder about 4 feet east of the asphalt shoulder and that his friend Joseph Maltaman accompanied him on his left. Defendant testified that he was driving north and that the left side of his car was closer to the dividing line between the fast and slow northbound traffic lanes than to the right edge of the slow…