to merge and extinguish all claims embraced in the submission. Thereafter the submission and award furnish the only basis by which the rights of the parties can be determined, and constitute a bar to any action on the original demand, unless both parties have repudiated it." (5 Corpus Juris, p. 163.)

We have considered this phase of the question somewhat at length for the reason that the respondents in support of the judgment-and upon, we think, the erroneous assumption that their contention is sound that the present agreement in effect provides that arbitration shall be a condition precedent to the bringing of suit-cited the case of Garcia & Maggini Co. v. Colvin, 53 Cal. App. 79 [199 Pac. 1113], which, it must be admitted, upholds their contention that arbitration must first be had in any case where the parties have so agreed. In that case no question was raised as to the validity of the arbitration clause. Both parties to that action assumed its validity. The claim there made by appellant was to the effect that defendant, having repudiated the contract, was estopped to invoke the arbitration clause therein.

The arbitration clause in the case cited reads: "Any controversy arising under this contract shall be settled by arbitration, and the submission of such controversy to arbitration in accordance herewith by each party shall be a condition precedent to the right of such party to enforce this agreement." Suit having been brought without such submission, a judgment of nonsuit granted upon the ground of such failure to arbitrate was upheld by the district court of appeal, in an opinion citing no authorities and containing no argument, the point being disposed of by the statement: "As arbitration or an attempt to effect arbitration was a condition precedent to the commencement of the action, the failure to allege and prove that such course had been followed, or that the plaintiff was excused from doing so, was fatal to its cause of action and the nonsuit on that ground was properly granted. . . ." As the submission to arbitration in that case covered all disputes that might possibly arise, and was not confined to the establishment or ascertainment of a fact essential to the existence of the cause of action, thus making a resort to arbitration an implied condition precedent to the bringing of suit, it came within the

general rule under which compliance with the agreement to arbitrate was not binding upon either party, notwithstanding the express attempt of the parties to make it so, and was, therefore, in our opinion, incorrectly decided.

The provision for arbitration in the case at bar, being one covering all disputes thereafter to arise under the contract and not being confined to the ascertainment of a fact essential to the existence of the cause of action itself, comes clearly within the general rule that it is not binding upon either party to it. The plaintiff, therefore, in the establishment of its case was not called upon to prove that it had submitted its claim to the method of arbitration provided in the contract between the parties, and the trial court erred in granting the defendants' motion for nonsuit based upon plaintiff's noncompliance with such provision. The judgment should, therefore, be reversed, and it is so ordered.

Lennon, J., Myers, J., Lawlor, J., Waste, J., Seawell, J., and Wilbur, C. J., concurred.

[L. A. No. 6847. In Bank.—March 23, 1923.]

ADA M. BURGESSER et al., Appellants, v. BULLOCK'S (a Corporation) et al., Respondents.

[1] NEGLIGENCE-USE OF HIGHWAYS-RIGHTS OF PEDESTRIANS AND AUTOMOBILES. Neither a pedestrian nor an automobile has a superior right of way on a highway; each is entitled to use the highway and the conduct of both must be regulated with reference to this fundamental rule.

[2] ID.

CROSSING STREET - QUESTION OF FACT. The question of whether or not a pedestrian is negligent in crossing a street is one which, in the absence of express statutes regulating his conduct, must ordinarily be left to the jury, for the conduct of an ordinarily prudent person under such circumstances must be largely determined by the condition of the traffic at the particular time and place in question. There may be circumstances under which it can be said that the pedestrian is negligent as a matter of law.

1. Reciprocal duty of operator of automobile and pedestrian to use care, notes, Ann. Cas. 1916E, 661; 51 L. R. A. (N. S.) 990; 9 A. L. R. 1248.

190 Cal.-43

[3] ID.-DIRECTED VERDICT.-In an action for damages for negligence, if there is any substantial evidence of negligence, it is error for the court to direct a verdict; but, on the other hand, the court may withdraw the case from the jury and direct a verdict where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. (On rehearing.)

APPEAL from a judgment of the Superior Court of Los Angeles County. Chas. Monroe, Judge. Reversed.

The facts are stated in the opinion of the court.

Norman A. Bailie, Michael F. Shannon and Thomas A. Wood for Appellants.

Haas & Dunnigan, S. F. MacFarlane and Claire Tappaan for Respondents.

WILBUR, C. J.-This is an action by the heirs of John Q. Burgesser, deceased, to recover damages due to his death. The trial court instructed the jury to bring in a verdict for the defendants. Plaintiffs appeal. The question presented on the appeal is whether or not there was sufficient evidence to go to the jury.

The decedent was killed by a collision between himself and an automobile belonging to the defendant Bullock's, a corporation, and operated by defendant Clopton, its employee. The accident occurred November 29, 1919, at the intersection of West Jefferson Street and Budlong Avenue, in the city of Los Angeles. About 6:15 P. M. of that day the deceased alighted from the front end of a west-bound Jefferson Street car, passed around the front end of such car and in front of the headlight of the car, and was walking across Jefferson Street in a southerly direction toward the curb on the south side of Jefferson Street, when he was struck by the defendant's automobile, proceeding easterly on Jefferson Street. The trial court granted the motion for an instructed verdict in favor of the defendants upon the ground that the decedent was negligent as a matter of law. The trial court evidently arrived at this conclusion because of the testimony of the decedent given by deposition in an action to perpetuate his testimony to the effect that he

looked to the left and then to the right toward the defendant's automobile and saw the headlights of the approaching automobile, and continued to observe them while he walked rapidly toward the curb. The opinion of the trial court in granting the motion for the instructed verdict is incorporated in the transcript and it appears that the trial judge was of the opinion that the decedent, having observed the approaching automobile before he entered its path, and having continually observed it thereafter, and having apparently misjudged its speed, was therefore guilty of contributory negligence. The fallacy of the conclusion reached by the trial court results from the assumption that the automobile had the right of way and that it was the duty of the pedestrian to assume that the automobile would continue in its direction without diminishing its speed or yielding to the pedestrian. [1] The law is that neither the pedestrian nor the automobile has a superior right of way, and that each is entitled to use the highway and that the conduct of both must be regulated with reference to this fundamental rule. The decedent testified that when he first saw the defendant's automobile it was about twenty-five feet on the other side of Budlong Avenue and that he had just passed around the front of the street-car and had looked toward the rear of the street-car before starting to cross, and then, looking to his right, saw the headlights of defendant's machine. These lights, he testified, were "low down," apparently meaning that they were dim. He stated it was "very dusk" and he could not see the automobile itself. Whether or not the decedent was negligent in crossing the street in front of the approaching automobile was primarily a question of fact for the jury, and for that reason we do not wish to enter into a further discussion of the matter, for it is sufficient for us to say that the jury might have concluded that the decedent was not negligent in so doing.

This case was transferred to the district court of appeal, second appellate district, division two, and an opinion was rendered by that court affirming the judgment of the trial court. That court, in affirming the judgment, relied upon a rule of law which it stated as follows: "A foot-traveler is negligent who fails to look both ways before crossing a highway where vehicles frequently pass. (Niosi v. Empire Steam Laundry et al., 117 Cal. 257 [49 Pac. 185]; Hamlin

v. Pacific Electric Ry. Co., 150 Cal. 776 [89 Pac. 1109]; Spring v. Tawa, 49 Cal. App. 100 [192 Pac. 1051].)" It is true that an instruction to that effect was given in the first case cited, Niosi v. Empire Steam Laundry et al., supra, and also in the case of Sheldon v. James, 175 Cal. 474, 478 [2 A. L. R. 1493, 166 Pac. 8]. The same rule is also stated in the case of Davis v. Breuner Co., 167 Cal. 683 [140 Pac. 586], but these cases must all be read in the light of the facts involved in the particular case. In the case of Niosi v. Empire Steam Laundry et al., supra, the jury had rendered a verdict in the defendant's favor. The plaintiff's own testimony showed that he stepped into the street intersection where the cross-street was about twenty feet wide, without looking toward the left, from which traffic would be expected to come on the side of the street he was entering, and that he was almost instantly struck by the right hub of the front wheel of the laundry wagon, so that apparently the horses drawing the laundry wagon had passed him when he stepped into the street and directly into the side of the wagon. The plaintiff had his attention directed toward some boys fighting farther up the cross-street to his right and did not look at all in the direction from which traffic was to be expected as he stepped from the curb. The real question, therefore, involved was whether or not it was the duty of the pedestrian in entering the street to look toward the direction from which he would expect traffic to approach if it was traveling on the right-hand side of the street he was about to enter. Under these circumstances the approval of the trial court's instruction amounted to no more than an approval of the rule that where a pedestrian steps from a curb into a narrow street where the traffic is heavy, it is his duty to look in the direction from which such traffic would be likely to come before stepping from the curb.

In the case of Davis v. Breuner Co., 167 Cal. 683 [140 Pac. 586], supra, this court was considering the question as to whether or not there was sufficient evidence to justify the finding of the trial court that the pedestrian was negligent. The statement in that case that it was the duty of the footpassenger to look both ways before starting to cross the street in entering a busy thoroughfare was directed to the