Plaintiff brought this action against the defendants, George Lamer and Wesley Lamer, to *456recover damages for an injury sustained by Mm when hit by an automobile driven by and under the control of said defendants while plaintiff was walking in a pedestrian crossing on Salmon street at its intersection with Third street in the city of Portland.
Pending the action and before trial, George Lamer died and the action was dismissed as to him and proceeded to trial as to the other defendant. At the close of the trial, the court refused to give the following instruction requested by the plaintiff:
“I instruct you that, if you should find from a preponderance of the evidence that the plaintiff was using a regular pedestrian crossing in a business district, then and in that event it was the duty of the defendant to look out for and yield the right of way to the plaintiff, and if the defendant under such circumstances failed and neglected so to do, then and in that event he would be guilty of negligence, and if such negligence was the proximate cause of plaintiff’s injuries, and the plaintiff himself was free from negligence, then and in that event your verdict must be for the plaintiff.”
and charged the jury as follows:
“I instruct you that while it is a rule of law that a pedestrian at a regular crossing place has the right of way, yet, I also instruct you that this right of way is not an absolute one, and if a motorist comes to an intersection and the conditions are such that, as a reasonable prudent person, a collision is not to be reasonably apprehended with a pedestrian, and the conditions are such that, as a reasonably prudent person, there was sufficient time within which to pass in front of the pedestrian with his automobile and a contact with the pedestrian was not to be reasonably apprehended, then I instruct you that the motorist would have the right of way.”
*457The trial resulted in a verdict and judgment for the defendant, and plaintiff has appealed, assigning as error the refusal to give said instruction and in charging the jury as above.
The correctness of the action so taken by the court presents the sole question for decision upon this appeal.
Section 38 of chapter 360, Laws 1931, provides:
“ (a) The driver of any vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at the end of a block, except at intersections where the movement of traffic is being regulated by police 'officers or traffic control signals, or at any point where a pedestrian tunnel or overhead crossing has been provided.
“ (b) Whenever any vehicle has stopped at a marked crosswalk or at any intersection to permit a pedestrian to cross the roadway, it shall be unlawful for the driver of any other vehicle approaching from the rear to overtake and pass such stopped vehicle.
“(c) Every pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk shall yield the right of way to vehicles upon the roadway.
“(d) The provisions of this section shall not relieve the driver of a vehicle or the pedestrian from the duty to exercise due care.”
Under the express provisions of this statute, a pedestrian, while crossing a street intersection on a regular pedestrian crossing, is given the right of way over motor vehicles unless, as the statute provides, the traffic is being regulated at such intersection by an officer or by traffic control signals, or some tunnel or overhead crossing has been provided. Under the plain directions of this statute, it is the duty of the driver *458of a motor vehicle, in approaching a pedestrian lane, to observe whether pedestrians are crossing thereover and, if so, to give them an opportunity to pass in safety and, if necessary for their protection, to check the speed of his car or even to stop and wait until all danger of injuring any pedestrian is passed. There is no provision of the road law more essential to the safety of the public nor one more frequently and openly violated by motorists than this provision of the law. The instruction objected to failed to give effect to this provision of the statute by charging the jury that, under the circumstances stated in the instruction, the motorist and not the pedestrian had the right of way. Regardless of whether or not a reasonably prudent person in a given case would reasonably apprehend that he could pass with his automobile in front of a pedestrian in a pedestrian lane without coming in contact with such pedestrian, it would not give to the motorist the right of way over the pedestrian. The instruction was misleading in that the jury might infer that since the motorist and not the pedestrian had the right of way, the defendant was not liable, and have based that conclusion wholly upon that fact, while if the instruction had not been given in that form the jury might have found the other way.
We think that the instruction requested and refused contained a correct statement of the law applicable to the case and that the court’s refusal to give that instruction was error which error was contained in and accentuated by the instruction given. For these reasons, the judgment is reversed.
Kelly, Campbell and Bailey, JJ., concur.