What is the test for contributory negligence in a motor vehicle accident?

'That plaintiff has been negligent and, as a result thereof, is in a position of danger from which he cannot escape by the exercise of ordinary care; and this includes not only where it is physically impossible for him to escape, but also in cases where he is totally unaware of his danger and for that reason unable to escape; that defendant has knowledge that the plaintiff is in such a situation, and knows, or in th exercise of ordinary care should know, that plaintiff cannot escape from such situation, and has the last clear chance to avoid the accident by exercising ordinary care, and fails to exercise the same, and the accident results thereby, and plaintiff is injured as the proximate result of such failure. It has been said that such failure by defendant to use ordinary care under such circumstances amounts to a degree of reckless conduct that may well be termed willful and wanton, and when an act is thus committed, contributory negligence upon the part of the person injuried is not an element which will defeat a recovery.' Girdner v. Union Oil Co., 216 Cal. 197, 202, 13 P.2d 915, 917.

The factual situation disclosed by the record as summarized would appear to fall squarely within the rule set forth in the Girdner case. Therefore since it is well established that '[i]t is the duty of the court to instruct on every theory of the case finding support in the evidence', Daniels v. City & County [145 Cal.App.2d 44] of San Francisco, 40 Cal.2d 614, 623, 255 P.2d 785, 791, and since there was substantial evidence which, if believed, would have upheld a verdict in favor of the plaintiffs under the doctrine of last clear chance, it was error for the trial court to refuse to so instruct and to send the case to the jury solely upon a question of the contributory negligence of the small child.