Dewees

Since this action was instituted appellant has married and her name is now Dorothy Mullineaux. This is the second appeal in this case. The first judgment was reversed on the ground that the evidence did not show any negligence on the part of appellant. The facts appearing on the first trial are stated in the earlier opinion, Dewees v. Kuntz, 106 Cal. App. 665 [ 289 Pac. 912 ], and we will not repeat here, those which are common to both records. We will confine ourselves to a discussion of evidence omitted from the second record, but which appears in the first, and new facts developed in the second trial.

There is no evidence before us that at the place of the accident there was any “soft dirt on the top” of the small rocks and boulders on the extreme right of the traveled portion of the roadway from the direction in which appellant was traveling. The curve in the road, at the place of the accident mentioned in the former opinion, is now described as slight.

Appellant testified that the accident happened while she was traveling down grade and immediately after she had crossed a culvert in the form of a pipe under the road and that she remembered crossing but one culvert before…