The failure to give the instruction was not prejudicial error. (E.g., Hom v. Clark, supra, 221 Cal.App.2d at pp. 647-648; Abney v. Coalwell (1962) 200 Cal.App.2d 892, 899 [ 19 Cal.Rptr. 846]; Callahan v. Theodore (1956) 145 Cal.App.2d 336, 339 [ 302 P.2d 333].) "General human experience justifies the inference that when one looks in the direction of an object clearly visible, he sees it, and that when he listens, he hears that which is clearly audible.
This holding, however, is contrary to the clear weight of authority in this state. (See Cooper v. Smith, supra, 209 Cal. 562, 566; Hom v. Clark, 221 Cal.App.2d 622, 647-648 [ 35 Cal.Rptr. 11]; Abney v. Coalwell, 200 Cal.App.2d 892, 899 [ 19 Cal.Rptr. 846]; Glanville v. Cannick, 182 Cal.App.2d 514, 517-518 [ 6 Cal.Rptr. 175]; Tankersley v. Low Watson Constr. Co., 166 Cal.App.2d 815, 822-823 [ 333 P.2d 765]; Fabela v. Hargis, supra, 147 Cal.App.2d 809, 816-817; Patterson v. Delta Lines, Inc., 147 Cal.App.2d 160, 163 [ 304 P.2d 842]; Chadek v. Spira, 146 Cal.App.2d 360, 366 [ 303 P.2d 879]; Callahan v. Theodore, 145 Cal.App.2d 336, 339 [ 302 P.2d 333]; Laursen v. Tidewater Assoc. Oil Co., 123 Cal.App.2d 813, 818 [ 268 P.2d 104]; Rickey v. Kardassakis, 110 Cal.App.2d 291, 295 [ 242 P.2d 384]; Schwenger v. Gaither, supra, 87 Cal.App.2d 913, 914. We hold the refusal to give the requested instruction not to be error.
The instruction was argumentative under the facts of this case and was unfair to the driver in that it failed to consider one of the most obvious explanations of his not seeing the boy immediately before the accident — the boy may have been directly in front of the truck, with parts of the truck interfering with the line of view between the driver and boy. ( Abney v. Coalwell, supra, 200 Cal.App.2d 892, 899; Callahan v. Theodore, 145 Cal.App.2d 336, 339-340 [ 302 P.2d 333].) [13] Next, plaintiff complains that the court erred in failing to give two instructions placing a higher degree of care on a truckdriver than a pedestrian because the driver is in control of a dangerous instrumentality.
In any event, the instruction has been criticized as an argumentative statement of a truism well known to all persons of average intelligence. ( Callahan v. Theodore (1956) 145 Cal.App.2d 336, 339-340 [ 302 P.2d 333].) [5] Appellant next complains of the court's failure to give BAJI 151. Here again, the record contains no evidence indicating that respondent was not exercising due care to avoid an accident, that he was not vigilant, or that his control over his vehicle was not such that he could have stopped in time to avoid any accident which could reasonably have been anticipated by him.
[3] Appellants also assert error in the refusal of the trial court to instruct that to look is to see and that to listen is to hear (BAJI 140). As has been pointed out, the instruction serves little useful purpose because it states only what is common knowledge ( Callahan v. Theodore, 145 Cal.App.2d 336, 339-340 [ 302 P.2d 333]). In any event, prejudice in refusal thereof does not appear when, as here, there is conflicting evidence as to whether warning signals were sounded by the moving train, and a major issue as to the point at which the moving train became visible, from behind the freight on the siding, to the driver of the approaching vehicle ( Wilson v. Foley, 149 Cal.App.2d 726, 734-735 [ 309 P.2d 97]).
This instruction has been adversely criticized, and it has been held from time to time that a failure to give it was not error. (See Schwenger v. Gaither, 87 Cal.App.2d 913, 914 [ 198 P.2d 108]; Rickey v. Kardassakis, 110 Cal.App.2d 291, 295 [ 242 P.2d 384]; Callahan v. Theodore, 145 Cal.App.2d 336, 339 [ 302 P.2d 333]; Laursen v. Tidewater Assoc. Oil Co., 123 Cal.App.2d 813, 818 [ 268 P.2d 104].) In the circumstances of the instant trial the giving of this proposed instruction would have been unfair to defendants.
"Looking and not seeing" instructions have been criticized as argumentative and as wholly unnecessary statements of a truism. ( Callahan v. Theodore (1956), 145 Cal.App.2d 336, 339 [ 302 P.2d 333]; Tankersley v. Low Watson Constr. Co. (1959), 166 Cal.App.2d 815, 822 [ 333 P.2d 765].) Furthermore, the trial court did give an instruction to the effect that if appellants were exercising the degree of care required of them, they "had a right to assume that the plaintiff was possessed of normal faculties of sight and hearing and would exercise ordinary care."
It is argumentative and merely states a commonplace. ( Laursen v. Tidewater Assoc. Oil Co., 123 Cal.App.2d 813, 818 [ 268 P.2d 104], and cases cited; Callahan v. Theodore, 145 Cal.App.2d 336 [ 302 P.2d 333]; Tankersley v. Low Watson Constr. Co., 166 Cal.App.2d 815, 822-823 [ 333 P.2d 765].) Plaintiff relies, however, upon Rubalcaba v. Sweeney, 168 Cal.App.2d 1 [ 335 P.2d 157], in which it was held error to refuse the instruction.
It is but a statement of a commonplace and is argumentative in form. ( Cooper v. Smith, 209 Cal. 562 at 566 [ 289 P. 614]; Callahan v. Theodore, 145 Cal.App.2d 336 at 339 [ 302 P.2d 333]; Laursen v. Tidewater Assoc. Oil Co., 123 Cal.App.2d 813 at 818 [ 268 P.2d 104].) "General human experience justifies the inference that when one looks in the direction of an object clearly visible, he sees it, and that when he listens, he hears that which is clearly audible.
"The proposed instruction is a mere commonplace, within the knowledge of all the jurors, and is argumentive, rather than a statement of law." And in Callahan v. Theodore, 145 Cal.App.2d 336 [ 302 P.2d 333], where it was held not error to refuse a substantially similar instruction, the court referred to the instruction as a truism, and stated that it was argumentative and conducive to misunderstanding since the jury might view it as a suggestion of the court's impressions. (And, see, Laursen v. Tidewater Assoc. Oil Co., 123 Cal.App.2d 813, 818 [ 268 P.2d 104].)