¶1(dissenting)—The trial judge, properly, I think, found the defendant Jeep driver negligent as a matter of law in making a sudden left turn in the middle of the block without adequate warning to vehicles following him. My views as to the plaintiffs’ contributory negligence, however, differ in some degree from those of the majority. I think it appropriate, therefore, to express my view of the circumstances as I read the record.
¶2Sam and Connie Valente were taking a Sunday afternoon drive in Seattle on January 26, 1964, when their journey was marred by an accident. Mr. Valente was at the wheel of their 1955 Chevrolet sedan and his wife Connie sat beside him in the front seat. As they were driving south on Renton Avenue in Seattle, a Jeep automobile they were *861passing made a left turn between intersections and struck the Valente Chevrolet.
¶3In the resulting action brought by the Valentes, the trial court charged the jury as a matter of law that the Jeep driver had been negligent, but submitted to the jury the issue of contributory negligence. From a judgment entered on a defense verdict, the Valentes appeal, contending there was insufficient evidence of contributory negligence to make it an issue in the case.
¶4Tom Bailey, the Jeep driver, had set out that early afternoon with his young friend, William Erickson, to locate the owner of a red pickup truck whom they believed would give them advice in repairing a car. The two young men were driving south on Renton Avenue between the Kenyon and Rose streets intersections when Tom, who was at the wheel, saw the red cab top of a pickup truck parked beside a hedge near one of the houses. Too late to stop, he went past the pickup and then turned his Jeep sharply to the left to cross the street and enter a private driveway. As the Jeep cut across the center line in a left turn, it hit the Valente car.
¶5The hedge nearly concealed the pickup and Tom said all he could see of it was the top of its red cab. He testified that he gave a left-turn signal, holding his hand out for an interval long enough to go past two or three houses before making his turn across the center line. There was no intersection where he turned, but some private driveways gave out upon the street and Tom said he wanted to turn into one of them. He could not say for certain which one, however, as he was by then past the red pickup truck.
¶6Mr. Valente, describing the accident in his testimony, said that as he drove south on Renton Avenue, a 2-lane street, he saw the Jeep ahead slow down and speed up a few times and noticed that its youthful occupants from time to time looked from side to side as if seeking a house address. When the Jeep slowed down, as though to stop or pull over to the right, Mr. Valente could see that the northbound or oncoming lane was free of traffic and obstructions *862and elected to enter it and pass the Jeep. He did not sound his horn but there was no commotion, disturbance or traffic condition on or near the roadway to require it, and he saw nothing in the conduct of the Jeep or its occupants tO' indicate that it might make a sudden left turn. He did not see any left-turn hand signal from the Jeep driver although he kept a good lookout for conditions ahead and possible oncoming traffic. When the Jeep made impact, the Valente car had completed its course into the passing or oncoming lane and was approximately 3 feet east of the Renton Avenue center line.
¶7I think that the learned trial judge correctly found the Jeep driver guilty of negligence as a matter of law, but cannot find adequate evidence to support an affirmative finding of contributory negligence. Among other things, Bailey, the Jeep driver, violated the Traffic Code of Seattle § 21.22.160:
It shall be unlawful to make a left turn between intersections on any street when such left turn delays or is likely to delay or stop any vehicle traveling in the same or the opposite direction on the street, or when such left turn endangers or is likely to endanger any person or vehicle on the street.
¶8and § 21.22.240:
A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning or during a period of time not less than that time required to traverse a distance in feet equal to five times the maximum speed in miles per hour allowed by law during the approach to the point of turning or stopping.
¶9Plaintiffs were thus protected by law from sudden left turns executed by vehicles ahead.
¶10The speed limit at the place of accident was 30 miles per hour, and the evidence clearly establishes that neither Va-lente nor Bailey exceeded it. Even under Bailey’s version of the event, it is clear that he did not give adequate warning of intention to make a left turn at a private driveway, and the trial court properly found him negligent as a matter of law. Plaintiff Sam Valente, of course, had a right to assume *863that others using the public streets would obey the traffic ordinances and to proceed on that assumption until he knew or in the exercise of reasonable care should have known otherwise.
¶11This brings us to the point of considering whether the record shows sufficient evidence to impose on plaintiff driver a duty to sound his horn and a breach of that duty, ■and whether the failure to sound the horn constituted a contributing or a proximate cause so as to supply substantial evidence of contributory negligence.
¶12The sounding of the horn on an overtaking and passing vehicle in Seattle no longer is a fixed and undeviating requirement, but is an obligation only when reasonably necessary for safe operation under the circumstances. Seattle Traffic Code § 21.40.160 provides:
Every motor vehicle when operated upon a street shall be equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than two hundred feet, but no horn or other warning device shall emit an unreasonable loud or harsh sound or a whistle. The driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use such horn when upon a street. (Italics mine.)
¶13Was there substantial evidence in the record upon which to enable the jury to find first a duty upon plaintiff driver to sound his horn and a breach of that duty which could be said to be a proximate cause of the accident? I think not.
¶14Mr. Yalente had a clear view ahead; the weather was •overcast but dry. He saw no oncoming traffic, obstructions, commotion or disturbances of any kind on either side of the street; the cars were between street intersections when he elected to pass the Jeep and there was nothing in the behavior of the Jeep or its occupants to indicate that it was out of control or would take any course other than slow to a stop or pull off to the right side of the street and stop. Thus, when Valente turned his car into the left or oncoming lane, there were no circumstances proved in the record *864to charge him with a duty to sound his horn, for there were no circumstances or conditions shown which would prompt a reasonably prudent driver to anticipate a sudden left turn in the middle of the block into the passing lane. Defendant’s vague testimony that he had his hand out while passing two or three houses, in my opinion, would be no more than a scintilla of evidence of circumstances upon which to charge plaintiff Sam Valente with a duty to sound his horn. I thus find no evidence supporting the issue of contributory negligence.
¶15It is a general rule, consistently followed by this court, that it is prejudicial error to submit to the jury issues of fact which are not supported by substantial evidence. Rutherford v. Deur, 46 Wn.2d 435, 282 P.2d 281 (1955); Leavitt v. De Young, 43 Wn.2d 701, 263 P.2d 592 (1953); Rathke v. Roberts, 33 Wn.2d 858, 207 P.2d 716 (1949). The issue of contributory negligence, being an issue of fact and an affirmative defense which must be established by a preponderance of the evidence, comes within this general rule. There must be more than a scintilla of evidence to support it, or the issue should not be submitted to the jury. Expressed otherwise, unless there be substantial evidence of contributory negligence in the record, it is not an issue in the case and should not be submitted to or considered by the jury. Hughey v. Winthrop Motor Co., 61 Wn.2d 227, 377 P.2d 640 (1963); Schneider v. Midwest Coast Transp., Inc., 51 Wn.2d 673, 321 P.2d 260 (1958).
¶16Usually the question of whether a driver' should have sounded his horn is one for the jury (Mitchell v. Rogers, 37 Wn.2d 630, 225 P.2d 1074 (1950); McCandless v. Inland N.W. Film Serv., Inc., 64 Wn.2d 523, 392 P.2d 613 (1964)); but, as in those cases, there must be substantial evidence of circumstances and conditions which would require a person of reasonable care and prudence to give an audible warning or signal.
¶17In the instant case, the record, as I read it, discloses no more than a scintilla of proof of any circumstances or conditions from which plaintiff Sam Valente would be' charged with the duty to sound his horn. The jury had to speculate *865and guess that maybe the accident would not have happened had Mr. Valente sounded his horn, but its conclusions on that fact would have been just that—guesswork and speculation.
¶18There being insufficient evidence of contributory negligence in this record to provide an issue of fact for the jury, I would reverse with directions to grant a new trial limited to the issue of damages.
¶19Weaver and Rosellini, JJ., concur with Hale, J.