Forcades

Plaintiffs appeal from the judgment entered upon unanimous jury verdict in favor of defendant in this personal injury action. The sole error asserted is *24 the trial court’s refusal to give an instruction (former BAJI 135-B) on the presumption of due care.

This case was tried in December 1965. Hence it was governed by the rules in effect before the operating date of the Evidence Code (Evid. Code, § 12). Under the then rules, a party suffering from loss of memory of the events of an accident was entitled to an instruction that he was presumed to have used ordinary care (Brown v. Connolly, 62 Cal.2d 391 [ 42 Cal.Rptr. 324 , 398 P.2d 596 , 11 A.L.R.3d 1348 ]). But such an instruction was improper when that party testified “concerning his conduct immediately prior to or at the time in question.” (Laird v. T. W. Mather, Inc., 51 Cal.2d 210, 221 [ 331 P.2d 617 ].) Also, the presumption was inapplicable when the facts proven “by the uncontradicted testimony of the party himself or his witnesses” negated due care [Mar Shee v. Maryland Assur. Corp., 190 Cal. 1, 9 [ 210 P. 269 ]).

The accident here in issue occurred as plaintiff, then 6 years 9 months old, crossed a divided highway…