MOSK, J.
Victor Brown, plaintiff and appellant, is a minor child1 who while riding his bicycle was struck by a car driven by Gregory Peter Connolly, defendant and respondent. The accident occurred in May 1957 when plaintiff was 6 years old. Two trials have been held in this case. The first resulted in a judgment for defendant, but it was reversed on appeal on the ground of incorrect instructions. (Brown v. Connolly (1962) 206 Cal.App.2d 582 [24 Cal.Rptr. 57].) The second trial also resulted in a judgment for defendant.
This appeal is concerned with possible contributory negligence of the minor plaintiff and his failure to testify due to an alleged loss of memory resulting from the accident. Under ordinary circumstances if a party cannot testify because of amnesia induced by injuries suffered in the accident involved in the litigation, he is entitled to a presumption that he acted with due care. (Scott v. Burke (1952) 39 Cal.2d 388 [247 P.2d 313]; Powley v. Appleby (1957) 155 Cal. App.2d 727 [318 P.2d 712] ; De Yo v. Umina (1953) 121 Cal.App.2d 505 [263 P.2d 623].) This presumption heretofore has arisen either where the party testified as to his own loss [394]*394of memory (see Scott v. Burke, supra) or was physically as well as mentally unable to testify (see Larsen v. Atchison, T. & S. F. Ry. Co. (1959) 176 Cal.App.2d 21 [1 Cal.Rptr. 36].) Plaintiff here did not take the stand, even though physically able, for reasons that will appear later. Instead, he attempted to establish the fact of his amnesia through the testimony of a psychiatrist. The court sustained an objection to the psychiatrist’s testimony and ultimately refused to give a jury instruction on the presumption of due care as requested plaintiff ./Plaintiff further requested an instruction that he was entitled to a presumption of due care solely by reason of his minority. That instruction was also refused.
We first consider whether a minor is entitled to a presumption of due care solely by virtue of his minority.
In asserting the affirmative of that proposition, plaintiff relies upon the cases of Van Der Most v. Workman (1951) 107 Cal.App.2d 274 [236 P.2d 842], McKay v. Hedger (1934) 139 Cal.App. 266 [34 P.2d 221], and Barrett v. Harman (1931) 115 Cal.App. 283 [1 P.2d 458]. While these cases all involved a minor plaintiff and a defense of contributory negligence and revolved around section 1963, subdivision 4, of the Code of Civil Procedure which provides for a disputable presumption “That a person takes ordinary care of his own concerns,” they are not helpful authority to us here. Unquestionably the code section applies to minors as well as to adults. A debatable advantage is afforded children of tender years in that their standard of care is to be tested against other children of the same age and not against adults, but the presumption of due care remains disputable and may be controverted by other evidence.
There is no convincing authority in California or in any jurisdiction holding that a minor is entitled to a presumption of due care solely by virtue of age. The thrust of the discussion in most foreign cases tends, in fact, to indicate an attitude that young children generally do not act in due regard for their own safety.2 Yet courts have not let this considera[395]*395tion result in more stringent standards of care for children. The imposition of liability for contributory negligence of children is not avoided by means of a due care presumption; it is determined by a bifurcated test which requires a finding that the particular child had the capacity to act negligently and then tests the child’s conduct by the standards of children of like age and maturity. This methodology protects children from unreasonably lofty liability standards while holding them liable when the facts justify it, and avoids the unsupportable conclusion that young children generally act with due regard for their own safety.
The particular means of application vary from state to state. The California rule is similar to the general pattern while avoiding the arbitrary chronological age limits used in many states. In California the age of capacity is a factual question to be determined by the mentality and maturity of the particular child. The standard of care applied to children found to have capacity for negligent acts is that of children of like age, mental capacity, and discretion. (Cahill v. E. B. & A. L. Stone Co. (1914) 167 Cal. 126 [138 P. 712]; Todd v. Orcutt (1919) 42 Cal.App. 687 [183 P. 963]; and Barrett v. Harman (1931) supra, 115 Cal.App. 283.)
The- California rule appears to be reasonable and workable. The presumption of due care requested by plaintiff in the instant case is available to a child charged with contributory negligence under the same circumstances as apply to adults, but not because he is a child. (Van Der Most v. Workman (1951) supra, 107 Cal.App.2d 274, and Barrett v. Harman (1931) supra, 115 Cal.App. 283.) There appears to be no necessity to create a new application of the presumption of due care solely because of the minority of the individual, since present rules protect against charging minors with a standard of care they cannot meet. We hold, therefore, that no presumption of due care arose solely by virtue of the plaintiff’s minority.
This, then, brings us to the problem of amnesia.
The presumption of section 1963, subdivision 4, has been limited to certain types of situations. The basic rule is that once a person takes the stand to explain his conduct immediately prior to or at the time in question, he is no longer entitled to the presumption. (Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 221 [331 P.2d 617].) The two areas in which the presumption is now allowed are actions for wrong[396]*396ful death (Anthony v. Hobbie (1945) 25 Cal.2d 814 [155 P.2d 826]; Westberg v. Willde (1939) 14 Cal.2d 360 [94 P.2d 590]; McBaine, Cal. Evidence Manual (2d ed. 1960) § 1291, pp. 472-475; Witkin, Cal. Evidence (1958) §§ 65-67, pp. 84-86) and those cases where by reason of brain injury the party suffers from retrograde amnesia and cannot remember and testify concerning his conduct at and immediately before the accident (Scott v. Burke (1952) supra, 39 Cal.2d 388; Kumelauskas v. Cozzi (1959) 173 Cal.App.2d 541 [343 P.2d 605]; McBaine, Cal. Evidence Manual, supra; Witkin, Cal. Evidence, supra).
A requirement for invocation of the presumption in amnesia cases is that the loss of memory was induced by brain injury suffered as a result of the accident in question. (Kumelauskas v. Cozzi
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MOSK, J.
Victor Brown, plaintiff and appellant, is a minor child1 who while riding his bicycle was struck by a car driven by Gregory Peter Connolly, defendant and respondent. The accident occurred in May 1957 when plaintiff was 6 years old. Two trials have been held in this case. The first resulted in a judgment for defendant, but it was reversed on appeal on the ground of incorrect instructions. (Brown v. Connolly (1962) 206 Cal.App.2d 582 [24 Cal.Rptr. 57].) The second trial also resulted in a judgment for defendant.
This appeal is concerned with possible contributory negligence of the minor plaintiff and his failure to testify due to an alleged loss of memory resulting from the accident. Under ordinary circumstances if a party cannot testify because of amnesia induced by injuries suffered in the accident involved in the litigation, he is entitled to a presumption that he acted with due care. (Scott v. Burke (1952) 39 Cal.2d 388 [247 P.2d 313]; Powley v. Appleby (1957) 155 Cal. App.2d 727 [318 P.2d 712] ; De Yo v. Umina (1953) 121 Cal.App.2d 505 [263 P.2d 623].) This presumption heretofore has arisen either where the party testified as to his own loss [394]*394of memory (see Scott v. Burke, supra) or was physically as well as mentally unable to testify (see Larsen v. Atchison, T. & S. F. Ry. Co. (1959) 176 Cal.App.2d 21 [1 Cal.Rptr. 36].) Plaintiff here did not take the stand, even though physically able, for reasons that will appear later. Instead, he attempted to establish the fact of his amnesia through the testimony of a psychiatrist. The court sustained an objection to the psychiatrist’s testimony and ultimately refused to give a jury instruction on the presumption of due care as requested plaintiff ./Plaintiff further requested an instruction that he was entitled to a presumption of due care solely by reason of his minority. That instruction was also refused.
We first consider whether a minor is entitled to a presumption of due care solely by virtue of his minority.
In asserting the affirmative of that proposition, plaintiff relies upon the cases of Van Der Most v. Workman (1951) 107 Cal.App.2d 274 [236 P.2d 842], McKay v. Hedger (1934) 139 Cal.App. 266 [34 P.2d 221], and Barrett v. Harman (1931) 115 Cal.App. 283 [1 P.2d 458]. While these cases all involved a minor plaintiff and a defense of contributory negligence and revolved around section 1963, subdivision 4, of the Code of Civil Procedure which provides for a disputable presumption “That a person takes ordinary care of his own concerns,” they are not helpful authority to us here. Unquestionably the code section applies to minors as well as to adults. A debatable advantage is afforded children of tender years in that their standard of care is to be tested against other children of the same age and not against adults, but the presumption of due care remains disputable and may be controverted by other evidence.
There is no convincing authority in California or in any jurisdiction holding that a minor is entitled to a presumption of due care solely by virtue of age. The thrust of the discussion in most foreign cases tends, in fact, to indicate an attitude that young children generally do not act in due regard for their own safety.2 Yet courts have not let this considera[395]*395tion result in more stringent standards of care for children. The imposition of liability for contributory negligence of children is not avoided by means of a due care presumption; it is determined by a bifurcated test which requires a finding that the particular child had the capacity to act negligently and then tests the child’s conduct by the standards of children of like age and maturity. This methodology protects children from unreasonably lofty liability standards while holding them liable when the facts justify it, and avoids the unsupportable conclusion that young children generally act with due regard for their own safety.
The particular means of application vary from state to state. The California rule is similar to the general pattern while avoiding the arbitrary chronological age limits used in many states. In California the age of capacity is a factual question to be determined by the mentality and maturity of the particular child. The standard of care applied to children found to have capacity for negligent acts is that of children of like age, mental capacity, and discretion. (Cahill v. E. B. & A. L. Stone Co. (1914) 167 Cal. 126 [138 P. 712]; Todd v. Orcutt (1919) 42 Cal.App. 687 [183 P. 963]; and Barrett v. Harman (1931) supra, 115 Cal.App. 283.)
The- California rule appears to be reasonable and workable. The presumption of due care requested by plaintiff in the instant case is available to a child charged with contributory negligence under the same circumstances as apply to adults, but not because he is a child. (Van Der Most v. Workman (1951) supra, 107 Cal.App.2d 274, and Barrett v. Harman (1931) supra, 115 Cal.App. 283.) There appears to be no necessity to create a new application of the presumption of due care solely because of the minority of the individual, since present rules protect against charging minors with a standard of care they cannot meet. We hold, therefore, that no presumption of due care arose solely by virtue of the plaintiff’s minority.
This, then, brings us to the problem of amnesia.
The presumption of section 1963, subdivision 4, has been limited to certain types of situations. The basic rule is that once a person takes the stand to explain his conduct immediately prior to or at the time in question, he is no longer entitled to the presumption. (Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 221 [331 P.2d 617].) The two areas in which the presumption is now allowed are actions for wrong[396]*396ful death (Anthony v. Hobbie (1945) 25 Cal.2d 814 [155 P.2d 826]; Westberg v. Willde (1939) 14 Cal.2d 360 [94 P.2d 590]; McBaine, Cal. Evidence Manual (2d ed. 1960) § 1291, pp. 472-475; Witkin, Cal. Evidence (1958) §§ 65-67, pp. 84-86) and those cases where by reason of brain injury the party suffers from retrograde amnesia and cannot remember and testify concerning his conduct at and immediately before the accident (Scott v. Burke (1952) supra, 39 Cal.2d 388; Kumelauskas v. Cozzi (1959) 173 Cal.App.2d 541 [343 P.2d 605]; McBaine, Cal. Evidence Manual, supra; Witkin, Cal. Evidence, supra).
A requirement for invocation of the presumption in amnesia cases is that the loss of memory was induced by brain injury suffered as a result of the accident in question. (Kumelauskas v. Cozzi (1959) supra, 173 Cal.App.2d 541, 544, and cases cited.) It has further been held that the amnesia must be genuine and that this is a question for the trier of fact to determine. (Scott v. Burke (1952) supra, at p. 393; Hensley v. Harris (1957) 151 Cal.App.2d 821, 825 [312 P.2d 414].)
Plaintiff appears to have met the foregoing requirements, and would unquestionably have been entitled to the benefits of the presumption, except for one complicating factor : he was not called to the stand to testify as to his own loss of memory. Plaintiff offered to prove his amnesia through the testimony of a psychiatrist who had examined him. The proposed testimony of the medical doctor was not permitted by the court upon objection of defendant. The court insisted that before an expert witness could testify as to his opinion about the loss of memory, a proper foundation must be laid for the expert testimony, and that the foundation would best be provided by the testimony of the plaintiff unless he was physically unable to take the stand. Since the plaintiff was physically able to take the stand, the court would not permit the expert opinion testimony.
Plaintiff has analogized his plight to situations in which medical testimony was introduced to establish that a party’s physical condition made it impossible or extremely hazardous for him to testify. (Larsen v. Atchison, T. & S.F. Ry. Co. (1959) supra, 176 Cal.App.2d 21; Hughes v. City & County of San Francisco (1958) 158 Cal.App.2d 419 [322 P.2d 623] ; Ray v. Henderson (1963) 212 Cal.App.2d 192 [27 Cal.Rptr. 847].) Plaintiff contends that he suffered a mental disability equivalent to a physical disability which would excuse him.
All the cases relied upon by plaintiff involve factual sitúa[397]*397tions in which the party not testifying was either mentally or physically so disabled as to prevent his appearance on the stand. No contention has been made that plaintiff is physically unable to testify. His body could have been produced. He does claim that his mental disability is one step removed from the usual amnesia, that on certain occasions he will say he cannot remember anything about the accident, but that on other occasions he will relate a version of the accident. His versions of the accident are seldom the same and are allegedly the product of fantasy. Thus, if called to the stand, plaintiff may or may not testify as to loss of memory, or he may purport to relate a version of the accident. In the latter circumstance his counsel would neither be able to vouch for plaintiff’s testimony, nor could he demonstrate to the jury how the plaintiff’s tale differs from time to time without in effect impeaching his own witness. As an escape from this dilemma the testimony of the psychiatrist was offered. Whereas if the minor were produced the jury would have been asked to judge on the basis of a single narration whether the story that he might tell is a real or fanciful recollection of events, here counsel proposed to uso an expert who had listened to the child on numerous occasions and has had an opportunity to hear and compare different related versions of the event.
The predicament of a party wishing to have the benefit of the presumption but understandably not desiring to testify as to his own loss of memory is balanced against the normal difficulty courts experience to detect eases of less than genuine amnesia. Undoubtedly the prevailing rules have a salutary effect in preventing those merely feigning amnesia from using the presumption of due care as a means of avoiding weak testimony and submitting to revealing cross-examination. Generally the best antidote for a malingerer is the scrutiny of an alert jury.
On the other hand, the compulsory testimony rule invoked here is unreasonably inflexible. An iron curtain has been created between physical incapacity to testify and mental incapacity, expert medical testimony as to the former being allowed, while medical testimony as to the latter is not, unless the mental incapacity has required institutionalization of the party. (See Larsen v. Atchison, T. & S.F. Ry. Co. (1959) supra, 176 Cal.App.2d 21.)
We cannot approve this arbitrary rule. The procedure here required by the trial court provides less assurance [398]*398of ascertainment of the truth than does the testimony of a competent medical expert, for the party opposing the due care presumption may (a) cross-examine the expert witness, and the jury may choose to reject the expert's evidence as to loss of memory; (b) produce contrary medical testimony; and (e) if he wishes, compel the party claiming amnesia to testify as an adverse witness under section 2055 of the Code of Civil Procedure and not be bound by his testimony.
No persuasive reason has been suggested as to why the testimony of a qualified psychiatrist would not be adequate proof that a person incurred an injury as a result of an accident which has caused him to suffer from a loss of memory of the facts before and during the occurrence of the accident. This is a subject peculiarly within the ken of a psychiatrist, and particularly under the circumstances of this case the expert’s testimony would appear to be more reliable than that of the minor plaintiff. Courts have recognized experts’ reliability in cases involving physical disability, such as Ray v. Henderson (1963) supra, 212 Cal.App.2d 192, where a physician testified that a witness would probably suffer an additional heart seizure if he took the stand. Here, as there, the jury would understandably have more confidence in the expert than in the patient on a medical issue.
There has been an increasing albeit tardy willingness of courts to consider uncommon mental and psychological problems as medical phenomena and thus appropriate subjects for expert testimony. (See, e.g., Prosser on Torts (2d ed. 1955), pp. 38-40 and 176-180.) The court-adopted rule that a person must testify as to his own loss of memory in order to be entitled to a presumption of due care should be another casualty of this trend. No increased danger of fraud upon the courts will result which is not outweighed by the decreased ability of a party who remains silent to convince the jury of the validity of his claim.
The trial court erred in excluding psychiatric testimony and in failing to give an appropriate instruction on loss of memory and the presumption of ordinary care. The errors compel a reversal and a new trial.
The judgment is reversed.
Peters, J., Tobriner, J., Peek, J., and Burke, J., concurred.