213 Mass. 232 | Mass. | 1913
This indictment charges in separate counts that the defendant (inter alla), in violation of St. 1909, c. 534, § 22, upon a public way, operated an automobile “recklessly” and “knowingly” went “away without stopping and making himself known after causing injury” to person and to property.
The undisputed facts were that the defendant, while driving a forty-eight horse power automobile of the touring car type upon a State road, struck an aged woman standing near a stationary automobile, inflicting injuries from which she died. The stationary automobile upon the side of the way was observed by the defendant some distance before he reached it, and the horns
1. The defendant’s first two requests for instructions as to reckless operation of the automobile were denied rightly. The crime charged was that the defendant operated an automobile recklessly. Instructions as to the meaning of these words were given, to which no exception was taken. As bearing upon this crime the defendant’s conduct after he saw the woman was by no means decisive, for his driving previous to that moment may have been such as to ignore the rights of other travellers, even if he did not see them. Antecedent conduct may be found to be reckless, even though all possible care may be exercised after the specific danger is actually discovered. Indeed, a person might be guilty of reckless driving although no one was upon the street. Mayhew v. Sutton, 20 Cox C. C. 146. Lawrence v. Fitchburg & Leominster Street Railway, 201 Mass. 489, 492, has no bearing upon the facts disclosed here.
2. The statement in the charge to the effect that automobiles must be used very much as other vehicles must be used and that the driver’s duty is to look out for persons and other vehicles on the highway was not open to exception.
3. The instruction was correct that the care, which the driver of an automobile “must exercise, is proportionate to that instrumentality or engine which he has in charge.” Speaking with precise technicality, every traveller upon a highway is bound to exercise the care of the ordinarily prudent and cautious person under all circumstances. (The degree of vigilance and continuity of alertness necessary to attain that standard vary with the time and place, surroundings and means of transportation. But it would savor too much of refinement to hold that there is any practical inaccuracy in saying that one driving a high-powered automobile must exercise greater care toward others on a State highway than one plodding along a country road with an ox team. The charge upon this point was full and without error. Keith v. Worcester & Blackstone Valley Street Railway, 196 Mass. 478, and cases cited. Brown v. Thayer, 212 Mass. 392, 396. Sullivan v. Scripture, 3 Allen, 564.
4. There is nothing in the exception to the reading to the jury by the judge from his notes of the testimony of one of the wit
5. Upon the counts which charged that the defendant “did knowingly go away without stopping and making himself known after causing the injury” to person and to property, there was evidence tending to show that the defendant while waiting for a considerable time at his own automobile which was disabled by the accident sent a man named Brooks back to the place, where the woman was injured and where the other automobile remained, with instructions to disclose his identity, and that Brooks although going to the place did not tell who the defendant was. Upon this aspect of the case the jury were instructed, in substance, that, even though the defendant told Brooks to go back and tell his name and residence and relied on him to do it and supposed he had done it, yet if Brooks failed to do as requested then the defendant had not complied with the statute.
The question is as to the meaning of the statute. Its obvious purpose is to enable those in any way injured by the operation of an automobile upon a public way to obtain forthwith accurate information as to the person in charge of the automobile. It should be interpreted in such way as to effectuate this end. Manifestly it imposes active and positive duties upon the operator of the automobile. It is not satisfied by stopping at some remote, obscure or inaccessible place, nor by a mere passive willingness to answer inquiries. In unmistakable language it requires the tendering on the spot and immediately of explicit and definite information as to himself of a nature which will identify him readily, and make it simple and easy to find him thereafter. While the statute does not state in terms to whom this information shall be given, its plain implication is that it must be furnished to those whose person or property has been injured, if reasonably possible, and if not to some one in their interest or to some public officer or other person at or near the place and time of injury. But the inhibited conduct consists in “knowingly” going away without giving this information. There are many statutes which prohibit the performance of a certain act without regard to the intent of the actor or his knowledge that elements are present which constitute a crime. Commonwealth v. Mixer, 207 Mass. 141, and cases there collected. It would have been simple for the Legis
No error is disclosed as to the trial upon the first count of the indictment. The verdict of guilty upon that count is to stand. The exception which is sustained relates only to the third and fourth counts, and the new trial must be confined to those counts.
So ordered.