Borenkraut

I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Ashburn in the opinion prepared by him for the District Court of Appeal, Borenkraut v. Randen (Cal.App.), 11 Cal.Rptr. 356 .

Schauer, J., concurred.

In this action for personal injuries, judgment was entered on a jury verdict in favor of defendants, and plaintiff has appealed. She has also attempted to appeal from the order denying her motion for a new trial, which order is not appealable. The main ground of the appeal from the judgment is that the trial court committed prejudicial error in the giving and refusing of certain instructions.

The facts are as follows: Plaintiff’s automobile stalled, and was pushed to defendants’ service station. The engine would not start, although there was gasoline in the tank. An attendant (Harryman) attempted to start the engine by means of the starter switch, with no success. Then the second attendant (Randen) removed the air filter and, in an attempt to suck gasoline into the carburetor, he placed his hand over the opening of that instrument while Harryman again depressed the starter switch, but the engine failed to start. They then decided that Randen should fill the carburetor with gasoline. There was testimony to the effect .that “he was pouring it [the gasoline] like you pour water into something.” There was *542 also undisputed testimony that the safe or proper procedure would be to…