¶1 (dissenting).
¶2 Among the errors assigned is number 4, attacking the giving of the following instruction.
“You are instructed that in determining whether or not the plaintiff was contributorily negligent in failing to act for her safety, as *411 an ordinarily reasonable and prudent person would have acted, you may take into consideration the following factors: the fear which plaintiff may have had of walking along the sidewalk; the fear which plaintiff may have had for her safety in leaving the highway to walk in unlighted areas; the fear which plaintiff may have had in crossing a wide, well traveled highway to reach the other side; the personal inconvenience involved to the plaintiff in crossing over 25 feet of muddy terrain to get to the sidewalk; the length of the distance which plaintiff anticipated walking along the right side of Redwood Road; evidence that plaintiff anticipated being picked up on the right side of Redwood Road by the mother of her friend.”
¶3 Under the circumstances of this case, I think this instruction highly prejudicial to defendant’s defense of contributory negligence. The evidence against plaintiff in this case was rather strong. Although she at times insisted that she was out on the shoulder of the road, she at one place remarked:
“We were not all the way on the pavement. We stepped over a little ways from the weeds.”
¶4 This answer came to the following question;
“Didn’t you say you would get on the paved highway and then when you heard a car coming you would move off?”
¶5 There was no evidence of any car marks indicative of the fact that defendant’s car had ever left the pavement; and when it was stopped it was facing southwest as if going off the pavement rather than southeast or coming on the pavement. The mud on the pavement was indicative of a collision on the pavement.
¶6 In this instruction the court says that in determining whether or not plaintiff was contributorily negligent in “failing to act for her safety,” — and I want to emphasize that “failing to act for her safety”— various elements of fear about which she testified could be considered. The court’s instruction number 9 gives two particulars wherein plaintiff is charged with being contributory negligent, or in other words, with “failing to act for her safety”:
*412 “(a) That plaintiff failed to keep a proper lookout for automobiles;
“ (b) That plaintiff walked where an ordinary prudent woman, under the circumstances would not have walked.”
¶7 Instruction number 12 applies “fear” to both of these— it makes no segregation between them, nor does it subdivide (b) between walking on the road instead of the sidewalk; and walking on the pavement instead of the shoulder of the road.
¶8 The impression created by the instruction is simply this: If plaintiff by reason of fear failed to look back for approaching cars or walked upon the pavement instead of the shoulder of the road then she did what an ordinarily prudent woman would have done under the same or similar circumstances even though the jury might have believed that, absent that fear, she was contributorily negligent.
¶9 Fear had no place in the picture except as explanatory of why she selected the road instead of the sidewalk to walk upon. The question is: How did she conduct her walk upon the road? The insertion of the element of fear into the measure of her alleged negligence — into the measure of what was reasonable under the circumstances, offers an element of excuse for a failure to live up to the ordinary standard of reasonableness; lowers that standard of care; and in a close case like this may have been the determining factor against defendant.
¶10 The case should be remanded for a new trial.