This instruction represents a correct statement of the law as it was at the time of the accident and at the time of the trial. ( Benjamin v. Noonan, 207 Cal. 279, 283 [ 277 P. 1045]; Taylor v. Cockrell, 116 Cal.App. 596, 599 [ 3 P.2d 16]; Fitzpatrick v. Haskell, 117 Cal.App. 684, 686 [ 4 P.2d 580].) In our opinion the trial court erred to the defendants' prejudice when it refused to give this instruction on the theory that "it was not the law".
[1] There can be no dispute of appellant's basic contention that on appeal from a judgment of nonsuit all the evidence, the intendments and every reasonably favorable inference and the presumptions must be construed most favorably to the appellant. ( Montgomery v. Nelson, 211 Cal. 497 [ 295 P. 1034]; Fitzpatrick v. Haskell, 117 Cal.App. 684 [ 4 P.2d 580]; W.C. Cook Co. v. White Truck Transfer Co., 124 Cal.App. 721 [ 13 P.2d 549].) [2] But in this case neither the proofs nor the inferences arising therefrom support appellant's contention that respondents or any of them participated in unfair competition or misused trade secrets confidential to plaintiff.
To drive an automobile at a rate of speed in excess of that which is allowed by statute as it then existed was negligence per se. ( Benjamin v. Noonan, 207 Cal. 279 [ 277 P. 1045]; Fitzpatrick v. Haskell, 117 Cal.App. 684 [ 4 P.2d 580].) It was the sole province of the jury to determine whether the defendant's machine was running at an unlawful rate of speed and whether that excessive speed proximately contributed to the cause of the accident.
" Benjamin v. Noonan, 207 Cal. 279, 277 P. 1045, 1046. To the same effect are Taylor v. Cockrell, 116 Cal.App. 596, 3 P.2d 16; Fitzpatrick v. Haskell, 117 Cal.App. 684, 4 P.2d 580; Thompson v. Dentman (Cal.App.) 21 P.2d 1009. As in the case of Taylor v. Cockrell, supra, both the facts in suit and the trial took place before the amendment of section 113 of the California Vehicle Act in 1931 (see St. 1927, p. 1436, § 30; St. 1931, p. 2120, § 34).