Malkasian

I dissent. I would reverse the order for the reasons expressed by Mr. Justice It. M. Brown in the opinion prepared by him for the District Court of Appeal in Malkasian v. Irwin (Cal.App.) 37 Cal.Eptr. 134.

Appellant’s petition for a rehearing was denied September 24, 1964. McComb, J., was of the opinion that the petition should be granted.

Plaintiff brought this action for the wrongful death of her son. The jury brought in a defense verdict. Plaintiff moved for a new trial. The motion was granted. Defendant appeals, contending that the order granting the new trial cannot be sustained on any of the grounds contained in the motion.

Before directly discussing the new trial proceedings, some reference should be made to the evidence.

The undisputed evidence shows that plaintiff’s son was killed in an accident which occurred on Highway 99, some 9 miles north of Fresno. At that point the road consisted of three lanes (southbound, northbound and a center passing lane), each approximately 12 feet wide, and two shoulders, each approximately 10 feet in width. Decedent, alone, was driving southerly (toward Fresno). Defendant, also unaccompanied, was also driving southerly, and his car was behind (or northerly of) decedent. The accident occurred opposite the Mammoth Truck Terminal, a service station and restaurant catering to trucking outfits, located on the westerly, or right-hand side of the highway going south. A large truck-trailer was parked between the gasoline pumps of the station and the road, facing southerly, with…