Gigliotti v. Nunes , 45 Cal. 2d 85 ( 1955 )

TRAYNOR, J.

— I dissent.

Defendant Nunes had the burden of proving that the deceased driver Walters was negligent. Accordingly, there is no basis for invoking a presumption against defendant that Walters was exercising due care. (See Speck v. Sarver, 20 Cal.2d 585, 590 [128 P.2d 16], dissenting opinion; Scott v. Burke, 39 Cal.2d 388, 402 [247 P.2d 313], dissenting opinion.)

Respondent’s petition for a rehearing was denied September 21, 1955. Edmonds, J., and Traynor, J., were of the opinion that the petition should be granted.