¶1This is a case in which a large part of the evidence was indirect or circumstantial. The court gave no instructions on the manner in which the jury should consider such evidence, its right to draw reasonable inferences therefrom or the weight to be given to such inferences when drawn by the jury. The plaintiff requested instructions on the subject which are conceded by my associates to state the law correctly, and which the trial court refused to give. This error appears to me to be so basic, and the prejudice from the failure to give such fundamental instructions to be so obvious that nothing advanced in either opinion can convince me otherwise than *10that the trial court not only committed error in this case but that the error was on such a fundamental subject that it must be held to be prejudicial.
¶2It is basic in the jury system that the jury are the judges of the facts but that they must be guided in determining the weight and effect to be given to the evidence by the rules of law given to them in the instructions of the court.
¶3Section 2061, subdivision 1 of the Code of Civil Procedure requires the court to instruct the jury on all proper occasions: “That their power of judging of the effect of evidence is not arbitrary, but to be exercised with legal discretion, and in subordination to the rules of evidence.” Unless the jury is properly instructed on the manner in which they are required by the law to weigh the evidence and the effect to be given to it by them this basic instruction becomes meaningless and their “power of judging of the effect of evidence” will become “arbitrary” and subject to be exercised without “legal discretion. ” The only control over arbitrary action by the jury in the exercise of an uncontrolled discretion is to be found in proper legal instructions given by the court which they are informed that it is their legal duty to follow.
¶4The basic instructions on circumstantial evidence requested by plaintiffs and refused by the court read:
“25. Evidence may be either direct or indirect. Direct evidence is that which proves a fact in dispute directly, without an inference or presumption, and which in itself, if true, conclusively establishes the fact. Indirect evidence is that which tends to establish a fact in dispute by proving another fact which, though true, does not of itself conclusively establish the fact in issue, but which affords an inference or presumption of its existence. Indirect evidence is of two kinds, namely, presumptions and inferences.
“A presumption is a deduction which the law expressly •directs to be made from particular facts. Unless declared by law to be conclusive, it may be controverted by other evidence, direct or indirect; but unless so controverted, the jury is bound to find in accordance with the presumption.
“An inference is a deduction which the reasoning of the jury draws from the facts proved. It must be found on a fact or facts proved and be such a deduction from those facts ‘as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature.’ ”
*11“26. The law makes no distinction between direct and indirect evidence as to the degree of proof required to support a finding of fact. Negligence and proximate cause both maybe proved by indirect evidence, if it carries the convincing force needed to constitute a preponderance of the evidence.”
¶5Proposed instruction 25 is taken almost word for word from the Code of Civil Procedure, sections 1831, 1832, 1957, 1958, 1959, 1961. Instruction 26 states a settled principle, that the law makes no distinction as to the weight to be given to direct and indirect evidence. “ [Circumstantial evidence may outweigh, in convincing force, . . . direct evidence. . . .” (Scott v. Burke, 39 Cal.2d 388, 398 [247 P.2d 313].)
¶6My associates agree that these instructions correctly state the law but they severally conclude that the error in refusing to give them was not prejudicial.
¶7I shall, as briefly as is consistent with the development of my conviction that the error must be held prejudicial, outline my reasons for my complete disagreement with this conclusion.
¶8The witness Cina testified that the decedent minor was on the shoulder two feet from the edge of the paved portion of the highway when he was struck by the automobile. The defendant testified just as positively that he never turned his car from the pavement on to the shoulder of the road before the accident occurred. The evidence was direct in both instances and in flat contradiction. The driver’s testimony, if believed, was direct proof of the fact that his car was on the pavement when the impact occurred. Gina’s testimony, if believed, was direct proof that the boy was two feet from the edge of the pavement when he was struck. Both stories could not be true since if both were true the impact could not have occurred.
¶9The jury was thus faced with a flat conflict in the only direct testimony and may well have concluded, weighing the one story against the other, that plaintiffs had not carried the burden of proof. In these circumstances the indirect evidence if given its proper weight by the jury might well have tipped the scales in plaintiffs’ favor. I shall cite in this connection only the testimony of the witness Van Sickle. She testified that she did not see the impact but she did see an object flying through the air, which later proved to be the boy’s body, and a cloud of dust. From this testimony of the cloud of dust the jury might reasonably have drawn an inference that the wheels of the automobile were on the dirt shoulder and not *12on the pavement. Whether this, or the other circumstantial evidence, was given its proper weight by the jury, or indeed whether it was given any weight at all, we can never know, for the simple reason that the court did not give the jury the rules of law by which they should be guided in considering the circumstantial evidence or the weight which they should accord to it.
¶10We do know that many people entertain a strong suspicion of circumstantial evidence and feel that it is less dependable and should carry less weight than direct evidence. Some or all of the jurors may have entertained this belief.
¶11The vice in this case, which no amount of rationalization can convince me is not prejudicial error, is that in a case in which the circumstantial evidence properly considered and given its legal weight might have tipped the scales the jurors were left to their own devices, without the legal guidance which it was appellant’s undoubted right to have the court give to them, to treat the circumstantial evidence in whatever manner their own unguided whims and caprice might dictate and not in the only manner in which the law expressly directs that they should treat it.
¶12In my opinion the judgment should be reversed.
¶13A petition for a rehearing was denied March 27, 1958. Dooling, J., was of the opinion that the petition should be granted. Appellants’ petition for a hearing by the Supreme Court was denied April 23, 1958. Carter, J., was of the opinion that the petition should be granted.