Harlow v. Van Dusen

• Decision Date: 06 December 1955
• Citation: 137 Cal.App.2d 547,290 P.2d 911
• Court: California Court of Appeals Court of Appeals
• Parties: Kaylin Teresa HARLOW et al., Plaintiffs and Respondents, v. Max VAN DUSEN et al., Defendants. Gladys Oxford, Administratrix, etc., Appellant. Civ. 20976.

Page 911

290 P.2d 911

137 Cal.App.2d 547

Kaylin Teresa HARLOW et al., Plaintiffs and Respondents, v. Max VAN DUSEN et al., Defendants Gladys Oxford, Administratrix, etc., Appellant.

Civ. 20976.

District Court of Appeal, Second District, Division 1, California.

Dec. 6, 1955.

Rehearing Denied Dec. 30, 1955.

Early, Maslach, Foran & Williams, Los Angeles, and Victor E. Williams and Donald J. Pierr, Los Angeles, for appellant.

Toxey H. Smith, Los Angeles, for respondents.

DORAN, Justice.

The administratrix of the Estate of Neal Calvin Oxford, Deceased, is here appealing from a judgment, after trial by jury, in favor of the respondents, awarding damages for the deaths of respondents' husbands and fathers, respectively, which occurred while the latter were riding as guests in a Studebaker automobile driven by Neal Oxford, deceased. The action herein is based upon the theory of wilful misconduct on the part of Neal Oxford who, along with the two guests Francis Harlow and Marco Piscitelli, died as a result of the accident.

The accident happened when the car, of which the three decedents were the sole occupants, traveling west along Highway 99 near Pomona, went into a spinning skid onto the wrong side of the highway, colliding with another car traveling in the opposite direction. Max Van Dusen, driver of the other car, named as a defendant, is not a party to this appeal, a nonsuit having been granted at the conclusion of the plaintiffs' case.

Francis Harlow, Marco Piscitelli and Neal Calvin Oxford were friends working together at the Pomona Convair plant, and on the afternoon of March 19, 1953, Harlow and Piscitelli, accompanied by several other men, 'played a few games of ping pong at the plant, and then, as they had done on previous occasions, set out on an evening of social relaxtion', to quote from appellant's brief. 'They first went to a place called the French Village, where they were joined by Neal Oxford * * *. At the French Village they had a few beers and played shuffle board. Later on, five of them went to another resort called the Alibi Supper Club * * * (where) the men conversed and listened to the orchestra and apparently had one or more drinks. According to Wesley West, one of those on the party, no one was intoxicated when he left the Alibi at about midnight. * * * West, * * * was the last of the party to see his three friends alive.

As disclosed by the record, the three decedents, Oxford, Harlow and Piscitelli, were next observed after midnight riding in Oxford's car, with Oxford driving, a few seconds before the crash. The three men were sitting in the front seat. The Oxford car was proceeding west on United States Highway 99, in an area known as Kellogg Hill. Witness Gerald Murphy, who was also proceeding west, by means of the rear view mirror, observed the Oxford car directly behind and in the righthand lane, just before Oxford passed Murphy's car.

According to Murphy's testimony, summarized in respondents' brief, 'The night was dark, a light rain or mist was falling and the highway was slick all over. Murphy's car was traveling about 50 miles an hour when Oxford's car swung into the left lane to pass him. * * * a conservative estimate of its speed would be 65 to 70 miles an hour. About two or three seconds after Oxford passed Murphy, his car went into a spin, swung around twice in a clockwise direction, crossed over the double line and crashed into the eastbound Van Dusen automobile on the other side of the road. At no time before the accident did the red brake lights of Oxford's car go on.'

It appears that the Kellogg Hill, a fourlane highway, proceeds in a series of 3 to 4 curves to the crest of the hill towards which the Oxford car was proceeding. State Highway Patrol Officer McArthur roughly estimated the grade at 'from 5 to 7 percent, maybe 10 percent', and testified, 'We consider them rather sharp curves so far as an accident hazard is concerned'.

The road in the accident area has warning signs reading, 'Slippery When Wet', also 'Slow', 'Downgrade', and signs indicating curves in the road. The accident occurred between two of the curves, about 100 to 150 feet west of one curve and just before the road bent into the succeeding curve. The night was dark, and the road had no lights or other illumination. The officer found no skidmarks, and did not smell alcohol on any of the parties. Oxford had frequently used the Kellogg Hill highway.

The jury found a verdict of $55,336.25 in favor of the Harlow heirs, and $33,866.47 for the Piscitelli heirs. Defendant's motion for a new trial was denied, followed by the present appeal from the...