A review of the testimony shows that the defendant's car was moving around thirty to thirty-five miles an hour, not a negligently high rate of speed under modern conditions, along a concrete highway, with an apparently clear track ahead. The only testimony indicating high speed is that skid marks were made for some distance when the brakes were applied, and the statement of a witness that the Ford was doing its best at a point where it passed him beyond a hill, about two hundred yards distant from the accident.
As said in Copeland v. State, 154 Tenn. 11, "Allowance must always be made for misadventure and accident, as distinguished from culpable negligence;" and
that it is uniformly held that the kind of negligence required to impose criminal liability "must be of a higher degree than is required to establish negligence upon a mere civil issue."
The collision occurred in August, 1930, more than a year after the passage of the motor vehicle act of 1929, which was generally taken to have repealed the former law fixing a speed limit of thirty miles an hour. While this Act was later held unconstitutional, we agree with the Attorney-General that criminal liability may not justly be predicated on the theory that the subsequently determined unconstitutionality of his Act rendered it so null and void ab initio as that the defendant, if driving however slightly above thirty miles an hour when the collision took place, was guilty of criminal negligence.
In Beaver v. State, 142 Tenn. 415, the view was endorsed that the citizen may rely on an enactment of the legislature until it has been declared unconstitutional or repealed; and inHunter v. State, 158 Tenn. 63, it was declared that he must treat the law as constitutional at his peril, until judicially otherwise decreed. In the Beaver case Mr. JUSTICE McKINNEY quoted with approval from the strong opinion of CHIEF JUSTICE GUMMERE inLang v. Bayonne, 74 N.J. Law, 458, 15 L.R.A. (N.S.), 101, 122 Am. St. Rep., 391, in which he declares that, "To require the citizen to determine for himself, at his peril, to what extent, if at all, the legislature has overstepped the boundaries defined by the Constitution in passing this mass of statutes, would be to place upon him an intolerable burden, one which it would be absolutely impossible for him to bear — a duty infinitely beyond his ability to perform. In my opinion, the provisions
of a solemn act of the legislature, so long as it has not received judicial condemnation, are as binding upon the citizen as is the judgment of a court against him so long as it remains unreversed."
Finding no sufficient evidence of criminal negligence on the part of plaintiff in error, the judgment must be reversed.