Woychesin v. State

MORRISON, Judge. The offense is negligent homicide in the first degree; the punishment, one year in jail. The information is in two counts. The first charges the homicide by negligence while engaged in the commission of the unlawful act of driving an automobile at a rate of speed in excess of 60 miles per hour. The second count charges the homicide to have been committed while appellant was engaged in the lawful act of driving an automobile on a public highway. The negligent acts alleged to have caused the automobile to strike the deceased and thus caused her death, as set forth in both counts of the information, were: 1. Failing to guide said vehicle away from the deceased. 2. Failing to keep said vehicle under proper control by reason of its operation at a fast rate of speed. 3. Failing to keep a proper lookout for the deceased. There was conflict between the testimony of the witnesses for the state and the accused as to the speed he was traveling. Appellant testified that he was traveling no more than 45 miles per hour. It may be observed that excessive speed is not alleged in either count of the information as the negligent act which caused the death of the deceased. In the first count, speeding was alleged as an unlawful act in which appellant was engaged at the time he failed to guide his car away from the deceased, failed to keep his car under proper control by reason of its operation at a fast rate of speed, and failed to keep a proper lookout. In the second count, the same failures were alleged as acts of negligence on the part of appellant which caused the death of the deceased, committed while appellant was lawfully driving the automobile. [453] In order to convict appellant under either count of the information, it was incumbent upon the state to prove that the deceased was killed as a result and consequence of the negligence of appellant in one or more of the manners alleged. And, in addition thereto, in order to convict for negligent homicide in the second degree, as charged in the first count of the information, the jury would have been required to find beyond a reasonable doubt that appellant at the time of the accident was driving his car at a rate of speed in excess of 60 miles per hour. This first count passed out of the case with the jury’s verdict. We are called upon to determine whether or not the evidence supports a finding by the jury beyond a reasonable doubt that appellant, while engaged in the lawful act of driving an automobile, was guilty of negligence in one or more of the ways charged. The state called officer Scarbrough, who testified that he had made measurements of the street at the point of the accident, which was marked off in four ten-foot lanes with eight foot shoulders on each side. The witnesses Garrett, Robinson and Newcomb, testified that the point of impact was on the center stripe between the two lanes of traffic going west. From this, we conclude that the deceased was 18 feet from the curb at the time she was hit. These witnesses further testified that they did not see deceased in the street until just a second before the accident. Appellant testified that he was driving in the center lane of traffic, that as he approached the scene of the accident he “glanced across the road and it looked like Santa Claus standing around his pickup there,” that then he noticed deceased, but did not discover her and her children in time to apply his brakes or to avoid hitting them. The view we take of the evidence is that, even though the state’s witnesses did not see deceased in the street until immediately before the accident, this is not significant because they were under no duty to do so, while appellant was under such a duty. The fact that the deceased had progressed 18 feet into the street from the curb at the time she was hit, coupled with the fact that appellant did not apply his brakes at any time, according to his testimony, is indicative to us that he was looking at Santa Claus or somewhere other than straight [454] in front of him and was, therefore, guilty of failing to keep a proper lookout. We are further of the opinion that the evidence is sufficient to support a finding of negligence on the second ground charged, by virtue of appellant’s own admission that he was driving 40 to- 45 miles per hour at a point where two streets meet in a congested area, and the obvious deduction from the fact that the tragedy occurred. Speed, under many conditions, may require extra care on the part of a driver in keeping his car under control, and failure in that regard may constitute negligence, though such speed is not in excess of the maximum set by law. Appellant testified that he was meeting three automobiles, one of which had bright lights, and yet he did nothing to reduce his speed. The entire testimony from appellant indicates that, through haste to beat deadline at the barber shop and then to secure some parts right at closing time in the evening, he failed to control his fast moving car so as to prevent striking pedestrians crossing the highway, and that such negligence resulted in the death of three persons. Finding no reversible error, the judgment of the trial court is affirmed.