Silvey

This is an appeal from a judgment which was entered upon the rendering of a verdict for damages for the death of Joseph Silvey resulting from an automobile collision.

On the night of March 4, 1930, the defendant Lindsay was driving a truck and trailer belonging to the defendant co-partnership, Harm & Frasher, easterly toward Fresno along the Tracy highway. The loaded truck and trailer weighed about thirty-two tons. A similar truck and trailer belonging to the same copartnership was proceeding along this highway just ahead of the Lindsay truck. It was a dark and rainy night. The highway was straight and level at the point where the accident occurred. There is a twenty-foot paved strip along the center of the highway, with an eight-foot dirt shoulder on either side thereof. From the edge of the concrete the roadway slopes down gradually to the extreme border of the right of way, a distance of thirty-four feet therefrom. The Lindsay truck stalled several times that day for' lack of power. This was due to a defective vacuum tank or temporary obstruction of the circulation which prevented the normal feeding of gasoline. On the return trip, when the truck reached a point near Banta…