Dewees v. Kuntz

MARKS, Acting P. J.

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

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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 the accident. An officer of the county of Fresno who had charge of this particular road, testified there were two culverts on the downgrade west of Squaw Valley. The upper, or one nearest Squaw Valley, was an iron pipe under the road which discharged into a depression at the roadside. The second, or lower culvert, was a much larger pipe with its ends set in rock abutments. He testified that while standing in the road immediately below the lower culvert he could see the road for two hundred yards towards Squaw Valley, and from immediately below the upper culvert he could see the road for one hundred yards in the same direction. We think the evidence justifies the conclusion that the accident happened immediately after appellant drove her car across the smaller or upper culvert. None of this -evidence appears in the transcript of the first trial.

On a second appeal the decision on questions of law on the first appeal becomes the law of the case and is binding where there is identity of facts. Where there is a substantial difference in the evidence offered at the second trial the rule cannot apply.