McAllister, j.
This is an action by the plaintiff, R. L. Phillips as guardian of his infant son, James Phillips, against T. M. Gosser to recover damages for personal injuries sustained by said minor when he was struck by an automobile owned and driven by Mr. Gosser. After the action was filed, Mr. Gosser died, and Chas. W. Creighton, Jr. was appointed administrator of his estate and substituted as the defendant. When the case was first tried the jury was unable to agree and was discharged. The second trial resulted in a verdict in favor of the defendant and from the judgment based thereon the plaintiff appeals.
The plaintiff’s brief contains nine assignments of error, six of which involve the giving or refusal to give certain instructions to the jury. Two assignments of error are based on the exclusion of testimony by the court and the other concerns the action of the court in permitting the widow of T. M. Gosser, who at the time of the trial had remarried, to sit at the counsel table during the trial with the attorney for the defendant.
[648]*648The accident occurred on. September 19, 1950, at about 5:12 o’clock p.m. in a rural area about three miles east of Salem on the Geer road which at that place runs east and west. Gosser was traveling westward and the road proceeding in that direction runs downhill into and across a small valley and then up the west slope of the valley at a grade estimated from 20 to 25 percent. There are fields on both sides of the road through the valley with a small orchard along the south side at the scene of the accident. The Phillips home is situated at the south side of the road near the top of the hill on the west side of the valley.
The evidence indicates that immediately prior to the accident, James Phillips, who was then just three years old, and his brother Roger, who was four years old, were playing in a patch of weeds on the south side of the road about 150 feet east of the Phillips driveway. The weeds were about 33 inches tall and according to their father, James was 39 inches and Roger 42 inches tall. Trails had been trampled in the weeds and after the accident a little red wagon with which the boys had been playing was found in the weed patch.
After the accident Gosser told an officer of the Oregon State Police who was investigating the accident that the two boys ran onto the road from the weed patch and ran across toward the north side of the road; that he did not see the boys until they ran out of the weeds; that Roger stopped at the center line of the highway but that James continued and was struck by the ear. The left headlight of the car was shattered and there was a dent immediately under that headlight. James received very severe permanent injuries.
According to the state police, the skidmarks leading to the Gosser car started north of but close to the center line of the highway and angled toward the north [649]*649edge of the pavement. The longest skidmark extended for 62 feet. The plaintiff testified that the southerly skidmark started slightly south of the center line. The car was stopped on the north shoulder about 20 feet beyond the west end of the skidmarks. The accident occurred on a clear, sunny day and witnesses testified that after the accident Gosser said in effect that he “was facing the sun” or “that the sun was in his eyes.”
Prior to the trial the attorney for the defendant asked the court for permission to have the widow of T. M. Gosser, who had remarried and was then Mrs. Daisy Loveland, sit at the counsel table with him during the trial. The request was granted over the objection of the plaintiff. It appears that the defendant, Chas. W. Creighton, Jr., is a Salem attorney who was appointed administrator of the estate of T. M. Gosser upon the petition of the plaintiff so that the action might be continued and had no other interest in the case. Plaintiff contended that Mrs. Loveland had no financial interest in the outcome of the case and that “it would put an improper color on the case to have her sitting there as a defendant when she is actually not a defendant.” Nothing further was offered to show how the plaintiff would be prejudiced by the presence of Mrs. Loveland at the counsel table. The manner of conducting a trial rests in the sound discretion of the trial court and we can not say that there was any abuse of that discretion in this case. Cholia v. Kelty, 155 Or 287, 63 P2d 895, Best v. Tavenner, 189 Or 46, 218 P2d 471, and Denton v. Arnstein, 197 Or 28, 250 P2d 407.
Plaintiff called as a witness James G. Lauder-back who testified that during the afternoon of the accident he was plowing in a field about three quarters of a mile south and east across the draw from the Phillips home. Plaintiff offered to prove by this witness that [650]*650while he was plowing he saw a car traveling west on the Geer road as it went down the hill and across the valley until it started up the hill on the other side; that right away he heard tires “howling on the pavement like somebody was trying to stop” but did not hear any impact; that he thought the car was traveling “plenty fast * * * 50 miles an hour easy.” The witness did not fix the time except to say that it was “along in the evening, I don’t know what time.” The ruling of the court in sustaining defendant’s objection to this testimony is assigned as error.
Lauderback did not describe the car observed by him nor was any other evidence offered to prove that the car seen by Lauderback was the Gosser car. The time at which Lauderback saw the car was not fixed with any certainty and might have been before or after the accident. It might be inferred that the car Lauder-back saw left skidmarks but there is no direct evidence of that fact. Nor is there any evidence that there were no other skidmarks on the highway that evening except those leading to the Gosser car. In the absence of any evidence to identify the car seen by Lauderback as the Gosser car, we think the trial court did not err in excluding this evidence.
Plaintiff also assigns as error the exclusion of the testimony of plaintiff that sometime after the accident Mr. Gosser made the following statement to Mr. Phillips:
“He told me that we had nothing to worry about, that everything would be taken care of.”
The rule adopted by this court governing the admissibility of statements such as that made by Mr. Gosser is stated in Briggs v. John Yeon Co., 168 Or 239, 254, 122 P2d 444:
“* * * The correct rule in that regard which [651]*651seems, however, not to have been recognized in onr decision in McAllister v. Farra, 117 Or. 278, 284, 243 P. 785, is, as stated by Circuit Judge Soper in Arnold v. Owens, 78 Fed. (2d) 495, ‘that a voluntary offer of assistance made upon an impulse of benevolence or sympathy may not be considered an admission of culpable causation (citing authorities). If, however, the surrounding circumstances indicate, not merely an act of benevolence, but some admission of fault on the part of the defendant, the evidence may be admissible.’ See: Watt v. Associated Oil Co., 123 Or. 50, 260 P. 1012; Bernasconi v. Bassi, 261 Mass. 26, 28, 158 N. E. 341; Grogan v. Dooley, 211 N. Y. 30, 105 N. E. 135; Sias v. Consolidated Lighting Co., 73 Vt. 35, 40, 50 Atl. 554; Patrick V. Bryan, 202 N. C. 62, 162 S. E. 207; Norman v. Porter, 197 N. C. 222, 148 S. E. 41; Binewicz v. Haglin, 103 Minn. 297, 115 N. W. 271, 15 L. R. A. (N.S.) 1096, 14 Ann. Cas. 225; Wilson v. Daniels, 250 Mass. 359, 364, 145 N. E.
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McAllister, j.
This is an action by the plaintiff, R. L. Phillips as guardian of his infant son, James Phillips, against T. M. Gosser to recover damages for personal injuries sustained by said minor when he was struck by an automobile owned and driven by Mr. Gosser. After the action was filed, Mr. Gosser died, and Chas. W. Creighton, Jr. was appointed administrator of his estate and substituted as the defendant. When the case was first tried the jury was unable to agree and was discharged. The second trial resulted in a verdict in favor of the defendant and from the judgment based thereon the plaintiff appeals.
The plaintiff’s brief contains nine assignments of error, six of which involve the giving or refusal to give certain instructions to the jury. Two assignments of error are based on the exclusion of testimony by the court and the other concerns the action of the court in permitting the widow of T. M. Gosser, who at the time of the trial had remarried, to sit at the counsel table during the trial with the attorney for the defendant.
[648]*648The accident occurred on. September 19, 1950, at about 5:12 o’clock p.m. in a rural area about three miles east of Salem on the Geer road which at that place runs east and west. Gosser was traveling westward and the road proceeding in that direction runs downhill into and across a small valley and then up the west slope of the valley at a grade estimated from 20 to 25 percent. There are fields on both sides of the road through the valley with a small orchard along the south side at the scene of the accident. The Phillips home is situated at the south side of the road near the top of the hill on the west side of the valley.
The evidence indicates that immediately prior to the accident, James Phillips, who was then just three years old, and his brother Roger, who was four years old, were playing in a patch of weeds on the south side of the road about 150 feet east of the Phillips driveway. The weeds were about 33 inches tall and according to their father, James was 39 inches and Roger 42 inches tall. Trails had been trampled in the weeds and after the accident a little red wagon with which the boys had been playing was found in the weed patch.
After the accident Gosser told an officer of the Oregon State Police who was investigating the accident that the two boys ran onto the road from the weed patch and ran across toward the north side of the road; that he did not see the boys until they ran out of the weeds; that Roger stopped at the center line of the highway but that James continued and was struck by the ear. The left headlight of the car was shattered and there was a dent immediately under that headlight. James received very severe permanent injuries.
According to the state police, the skidmarks leading to the Gosser car started north of but close to the center line of the highway and angled toward the north [649]*649edge of the pavement. The longest skidmark extended for 62 feet. The plaintiff testified that the southerly skidmark started slightly south of the center line. The car was stopped on the north shoulder about 20 feet beyond the west end of the skidmarks. The accident occurred on a clear, sunny day and witnesses testified that after the accident Gosser said in effect that he “was facing the sun” or “that the sun was in his eyes.”
Prior to the trial the attorney for the defendant asked the court for permission to have the widow of T. M. Gosser, who had remarried and was then Mrs. Daisy Loveland, sit at the counsel table with him during the trial. The request was granted over the objection of the plaintiff. It appears that the defendant, Chas. W. Creighton, Jr., is a Salem attorney who was appointed administrator of the estate of T. M. Gosser upon the petition of the plaintiff so that the action might be continued and had no other interest in the case. Plaintiff contended that Mrs. Loveland had no financial interest in the outcome of the case and that “it would put an improper color on the case to have her sitting there as a defendant when she is actually not a defendant.” Nothing further was offered to show how the plaintiff would be prejudiced by the presence of Mrs. Loveland at the counsel table. The manner of conducting a trial rests in the sound discretion of the trial court and we can not say that there was any abuse of that discretion in this case. Cholia v. Kelty, 155 Or 287, 63 P2d 895, Best v. Tavenner, 189 Or 46, 218 P2d 471, and Denton v. Arnstein, 197 Or 28, 250 P2d 407.
Plaintiff called as a witness James G. Lauder-back who testified that during the afternoon of the accident he was plowing in a field about three quarters of a mile south and east across the draw from the Phillips home. Plaintiff offered to prove by this witness that [650]*650while he was plowing he saw a car traveling west on the Geer road as it went down the hill and across the valley until it started up the hill on the other side; that right away he heard tires “howling on the pavement like somebody was trying to stop” but did not hear any impact; that he thought the car was traveling “plenty fast * * * 50 miles an hour easy.” The witness did not fix the time except to say that it was “along in the evening, I don’t know what time.” The ruling of the court in sustaining defendant’s objection to this testimony is assigned as error.
Lauderback did not describe the car observed by him nor was any other evidence offered to prove that the car seen by Lauderback was the Gosser car. The time at which Lauderback saw the car was not fixed with any certainty and might have been before or after the accident. It might be inferred that the car Lauder-back saw left skidmarks but there is no direct evidence of that fact. Nor is there any evidence that there were no other skidmarks on the highway that evening except those leading to the Gosser car. In the absence of any evidence to identify the car seen by Lauderback as the Gosser car, we think the trial court did not err in excluding this evidence.
Plaintiff also assigns as error the exclusion of the testimony of plaintiff that sometime after the accident Mr. Gosser made the following statement to Mr. Phillips:
“He told me that we had nothing to worry about, that everything would be taken care of.”
The rule adopted by this court governing the admissibility of statements such as that made by Mr. Gosser is stated in Briggs v. John Yeon Co., 168 Or 239, 254, 122 P2d 444:
“* * * The correct rule in that regard which [651]*651seems, however, not to have been recognized in onr decision in McAllister v. Farra, 117 Or. 278, 284, 243 P. 785, is, as stated by Circuit Judge Soper in Arnold v. Owens, 78 Fed. (2d) 495, ‘that a voluntary offer of assistance made upon an impulse of benevolence or sympathy may not be considered an admission of culpable causation (citing authorities). If, however, the surrounding circumstances indicate, not merely an act of benevolence, but some admission of fault on the part of the defendant, the evidence may be admissible.’ See: Watt v. Associated Oil Co., 123 Or. 50, 260 P. 1012; Bernasconi v. Bassi, 261 Mass. 26, 28, 158 N. E. 341; Grogan v. Dooley, 211 N. Y. 30, 105 N. E. 135; Sias v. Consolidated Lighting Co., 73 Vt. 35, 40, 50 Atl. 554; Patrick V. Bryan, 202 N. C. 62, 162 S. E. 207; Norman v. Porter, 197 N. C. 222, 148 S. E. 41; Binewicz v. Haglin, 103 Minn. 297, 115 N. W. 271, 15 L. R. A. (N.S.) 1096, 14 Ann. Cas. 225; Wilson v. Daniels, 250 Mass. 359, 364, 145 N. E. 469.”
The above rule was followed in Dunning v. Northwestern Electric Co., 186 Or 379, 199 P2d 648, 206 P2d 1177, which expressly overruled McAllister v. Farra, supra.
We believe the statement made by Mr. Bosser does not in itself constitute an admission of fault and in the absence of circumstances indicating that the statement could be so construed, the testimony was properly excluded. We have reviewed the authorities eited in plaintiff’s brief which include Brown v. Wood, 201 NC 309, 160 SE 281, and insofar as they are in conflict with the rule adopted by this court, we decline to follow them.
The plaintiff assigns as error the failure of the court to give the following requested instruction:
“It is the duty of a person driving a motor vehicle on and along a public highway to keep a reasonably constant and continuous lookout.
[652]*652“This is a continuing duty, and the obligation is upon one so driving a motor vehicle on a public highway continually to be on the lookout for others moving onto or on and along or across the roadway.
“This means not only to look, but also to see and observe that which an ordinarily prudent person in the position of the driver could see and observe.
“I instruct you that if you find from a preponderance of the evidence that Mr. Grosser failed to keep a reasonably constant and continuous lookout as he drove on and along the highway, you must find that he was guilty of negligence.”
In his complaint the plaintiff alleged that Grosser was negligent in driving without any lookout. The court called the attention of the jury to this and the other specific charges of negligence but did not further define or explain Gosser’s duty to maintain a lookout. If a proper instruction on this subject had been requested it should have been given.
This court has consistently held that an operator of a motor vehicle must maintain such a lookout as a reasonably prudent person would maintain in the same or similar circumstances. See Walker v. Penner, 190 Or 542, 227 P2d 316 and Senger v. Vanc.-Portland Bus Co., 63 Adv Sh 483, 304 P2d 448.
The instruction requested by plaintiff makes no reference to the circumstances existing at the time and place of this accident. In addition, the second paragraph of the instruction would impose a duty on a motorist driving in a rural area to continuously look for persons moving onto or across the highway. A motorist is required to keep a reasonably continuous lookout but is not required to continuously look for danger from a particular area unless under similar circumstances such a lookout would be maintained by [653]*653a reasonably prudent person. The duty resting on Mr. Grosser in this case was to keep such a lookout as a reasonably prudent person would have maintained in the same or similar circumstances. The requested instruction would have imposed a higher duty on Mr. Grosser and the failure to give the instruction was not error. The rule applicable was restated in Valdin v. Holteen and Nordstrom, 199 Or 134, 161, 260 P2d 504, as follows:
“ * * Failure of a trial court to instruct the jury upon the law applicable to a party’s theory of the case may be assigned as error on appeal only if predicated upon the court’s refusal to give a requested instruction which clearly, concisely, and accurately stated the law in question.’ ”
Plaintiff assigns as error the failure of the court to give the following requested instruction:
“The public highways are open for all, children as well as adults. Children have equal and reciprocal rights with motorists to the use thereof.”
Although the above instruction might be true as an academic proposition of law, we doubt that it would be a proper instruction in any ease. If a child is old enough to be accountable for his conduct his right to the immediate use of the highway would not at all times be equal and reciprocal with that of a motorist. If the child were crossing the roadway at a crosswalk he would have the right-of-way. If the child were crossing the roadway at any other place, the motorist would have the right-of-way. In a proper case the jury would be instructed concerning the rights and duties of the pedestrian and motorist depending upon the circumstances of the particular case.
Because James was only three years old, he was under no duty whatsoever to exercise care and the [654]*654court so instructed the jury. Whether he was rightfully on the road or not could make no difference in this case. Under these circumstances the requested instruction was unnecessary and in the absence of any explanation of what is meant by equal and reciprocal rights would tend to confuse the jury. The court did not err in refusing to give the requested instruction. See Archer v. Gage et al., 126 Or 532, 556, 270 P 521.
We have considered the other objections made by the plaintiff to the instructions but have found nothing prejudicial to the plaintiff. This case was well tried and the issues were simple and readily understandable by the jury. The case turned on whether Mr. Grosser should have seen J ames in time and been able to avoid hitting him. The case was fairly submitted to the jury and in the absence of any error, the judgment is affirmed.