The appellant was charged by way of second amended affidavit with the offense of reckless homicide as defined by §52, ch. 48, Acts 1939, being §47-2001 of Burns’ 1942 Repl. His motion to quash was overruled, whereupon he entered a plea of not guilty. He waived trial by jury, was found guilty by the court, and was sentenced to imprisonment for six months at the Indiana State Farm. His motion for new trial was overruled and this appeal perfected.
The affidavit alleges, in substance, that the appellant was driving a loaded tractor semi-trailer unit in a southerly direction on U. S. 27, which was being resurfaced by contractors who had installed one way traffic at the place where the collision occurred, and had provided a flagman to. control traffic at that point and for six miles to the north had erected signs at frequent intervals warning that said highway was under construction and travel thereon was at the risk of persons using said highway. It further alleges that about twenty southbound vehicles had been halted and were standing in the southbound lane of said highway waiting a signal to proceed and the automobile of Vernon E. Brandt, in which Lawrence R. Summersett was a passenger, had reached the end of said line of cars
The affidavit then charges, in great detail, that the appellant unlawfully drove with reckless disregard for the safety of others, and particularly Summersett, in that appellant did continue to operate the motor vehicle at a speed greater than was reasonable and prudent under the circumstances, enumerating them, and did further with reckless disregard of the safety of others, and particularly the safety of Summersett, fail and neglect to reduce the speed of his vehicle and bring the same under such control as would permit him to stop said vehicle before reaching the point where Brandt’s car was stopped or about to stop, and did continue to operate and propel his vehicle into, upon and over the Brandt car with such force as to drive said car forward a distance of 200 feet into and through the cars ahead, by reason whereof Summersett suffered fatal injuries. The affidavit further alleges that such operation of the vehicle by the appellant was the proximate cause of the death of said Summersett.
Sec. 55 of ch. 48, Acts 1939, Burns’ 1942 Repl., §47-2004, provides speed regulations for motor vehicles, and §60 (a) of the same Act (Burns’ 1942 Repl., §47-2009(a)) provides that:
“In every charge of violation of any speed regulation in this act, the complaint or affidavit, and the summons, warrant or notice to appear, shall specify the speed at which the defendant is alleged to have driven, and the prima facie or fixed speed applicable within the district or at the location.”
Although the language of the section is somewhat obscure, 1 it seems quite apparent from a consideration of all of the language of the section and of the Act of which it is a part that the section is intended to apply only when the charge, or in other words the prosecution, is for the violation of a speed regulation prescribed by the Act, and not when the indictment charges a different offense such as reckless homicide or manslaughter.
In the affidavit the acts of commission and omission attributed to the appellant are repeatedly characterized as having been done or omitted with reckless disregard for the safety of others, and particularly of Summersett, but in three separate places in the affidavit the appellant’s conduct is designated as being both reckless and negligent. Negligent conduct is not made criminal conduct by the Act. Considering the allegations of the affidavit as a whole, however, it is inconceivable that the appellant could have been confused or misled by the use of the word “negligent” in the affidavit. In the context in which the word is found
The affidavit alleges in great detail the conditions of the traffic, roadway, etc. under which the appellant drove his vehicle at and just prior to the collision, but it does not allege that the appellant knew of those conditions or of any danger, that might lie ahead of him. The affidavit alleges conditions which were open and obvious to any traveler on the highway in broad daylight. That being the case, we cannot believe the affidavit was defective in failing to allege that the appellant had knowledge of them.
The evidence discloses that on October 15, 1951, U. S. 27 was being resurfaced at a point just north of the town limits of Waterloo, Indiana. At that point the road makes a bend to the east and then extends slightly north and east until it bends to the north in a long curve. At the time of the accident there were some twenty or twenty-five southbound automobiles and trucks stopped and waiting their turn to pass the construction machinery at which point one-lane traffic was being maintained. For several miles signs were maintained at intervals to the north which read “Road under construction — Travel at your own risk.”
The' appellant, driving a heavy tractor and semitrailer outfit loaded with twenty-two thousand pounds of steel castings, approached the point where the traffic was stopped. When he rounded the curve at the east end of the straight stretch on which the traffic was stopped,' two or three automobiles were still moving
There is evidence that the appellant was driving fifty-five to sixty miles per hour when coming around the curve, and that his speed was reduced but little up to the time he crashed into the line of traffic. The ensuing disaster, as shown by the photographs in evidence, would be difficult to describe. Summersett was killed outright, several others in various cars were most grievously injured, and eight cars were damaged, some being practically demolished.
The Brandt car, in which the deceased was riding, was the last car in the line of traffic. The appellant testified he was driving approximately forty miles per hour. Although there is no evidence that appellant’s attention was diverted at any time, he testified that when he first noticed the line of traffic was stopped he was only two hundred fifty or three hundred feet away from it, and he. then applied the brakes; that the brakes, which would have stopped the equipment in that distance or less if they were working, refused to work, thus accounting for the collision.
In challenging the sufficiency of the evidence to sustain the finding, the appellant takes the position that he was guilty of negligence only, since it could only be inferred from the evidence in this case that through inadvertence, lack of attention, or error of judgment, he did not see or realize that the traffic ahead had stopped until it was too late to avoid the collision when he discovered that his brakes would not hold.
In
Armstrong
v.
Binzer
(1936),
“ ‘Reckless disregard of the rights of others, as used in the Indiana Guest Statute, means where the owner or operator of an automobile voluntarily does an improper or wrongful act, or with knowledge of existing conditions, voluntarily refrains from doing a proper and prudent act, under circumstances when (where) his action, or his failure to act, evinces an entire abandonment of any care, and a heedless indifference to results which may follow, and he recklessly takes the chance of an accident happening without intent that an accident may occur.’ ”.
That case was decided, and transfer denied, prior to the enactment of ch. 48, Acts 1939, and it is proper to assume, as is said in
State
v.
Beckman
(1941),
We think the appellant’s position as above stated is based upon the assumption of facts most favorable to the accused rather than those favorable to the state. The evidence with respect to the condition of the brakes was conflicting and such that the court could find that the collision did not result from a failure of the brakes as testified by the appellant. There was conflict with regard to the speed at which appellant was traveling, and although he testified he did not notice the stopped traffic until he was within.two hundred fifty or three hundred feet of it, it could be inferred from the other evidence that such was not the case.
If, as the trial court apparently found, the appellant’s brakes were in working order, it follows of necessity that the collision could only have occurred by reason of the appellant’s failure to make timely application of them under conditions of danger of which he must have been aware, but instead continued on with apparent heedless indifference to the results that might follow. The evidence was sufficient to sustain the finding of the trial court.
The appellant relies on
Dierickx
v.
Davis, Agent
(1932),
But while the intention to do or omit the act resulting in injury to another is a necessary ingredient of reckless homicide, willfulness in the sense of a design, purpose, or intent to inflict an injury is not a necessary element of the offense. In other words, to be guilty of a reckless disregard for the safety of others, it is not necessary that one intend the harm which results from it. It is sufficient that the actor realizes, or should realize, that there is a strong probability that such harm may result. See
Rogers
v.
Doody
(1935),
In addition to testimony concerning the speed at which appellant was driving at and near the scene of the accident, testimony was admitted over appellant’s objection which went to the speed at which the tractor trailer was being operated a mile to a mile and a half back, and it is asserted this testimony was too remote and should therefore have been rejected. The affidavit does not allege an isolated act or omission; it charges, and the evidence discloses, a “course of conduct” on the part of the appellant which culminated in the death of Summersett. In such a case it was not necessary to restrict proof of the
Objection was made to the testimony of a police officer concerning his conversation with the appellant at the hospital after the collision had occurred. Error in the admission of this testimony, if any, was harmless since the appellant himself testified to the same facts on the trial of the case.
The equipment belonged to the appellant’s employer. After the collision an examination disclosed the brakes to be in working order. No rights of the appellant were infringed by the examination of the brakes. We think the testimony relative to the condition of the brakes after the collision did have probative value. In
Turrell
v.
State
(1943),
Judgment affirmed.
Note. — Reported in
Notes
. It might seem, as asserted by the appellant, that this section of the Uniform Act applies equally to criminal and civil actions. It has been held, however, that the section does not apply to civil actions.
Alendal
v.
Madsen
(1937), 65 S. D. 502,