What is the test for a jury to find that there is insufficient evidence to establish wilful misconduct?

Appellant also contends that there is insufficient evidence to establish wilful misconduct. This contention ignores the abundant evidence adduced at the trial and attempts to [158 Cal.App.2d 400] impose upon a party seeking to establish wilful misconduct the almost impossible burden of proving the intention of the actor to be charged by positive evidence of such intention. We do not deem the rule to be such. Where, as here, there is evidence which, if believed, would justify the jury in finding that defendant, while racing up a road he knew to be winding and steep in a competition with a trailing car, failed to negotiate a curve at almost twice the speed estimated to be prudent, it would appear to be extremely artful to urge that such facts could not be the basis for a finding that defendant's actions were not intentionally done under circumstances which disclosed knowledge, express or implied, that an injury to a guest would be a probable result. If such evidence was believed by the jury, it would be difficult to justify any result other than that reached here. The case of Rawlins v. Lory, 44 Cal.App.2d 20 at pages 24 and 25, 111 P.2d 973, at page 975, contains language particularly apposite here, although the facts were somewhat different: 'It is also a legitimate inference from the testimony that the defendant driver was racing to overtake the other car and that he was engaging in what may be termed skylarking in 'hanging the corner' into North street. By the term 'skylarking' we mean

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