189 Ind. 691 | Ind. | 1920
Appellant was charged by an indictment in one count with the crime of involuntary manslaughter. A trial resulted in a verdict of guilty,- and judgment was rendered ón the verdict. From the judgment so rendered this appeal is prosecuted,
For the reasons just stated, no error was committed in overruling appellant’s motion in arrest of judgment.
Appellant earnestly presents for consideration the rulings of the trial court in giving certain instructions to the jury and in refusing to give certain instructions tendered by appellant. It is asserted that
_ No. 8-"If you find from the evidence in this .cause that the defendant at the time the offense charged, was committed, if it was committed, was driving an automobile on a public highway outside of any incorporated city, town or village, at a rate of speed as would. endanger the safetey of others using such a highway, highway, and in reckless disregard of the. probable consequence thereof,, and knew or should have known that said rate of speed having regard to the traffic and use of such, highway would endanger, the safety of others then I instruct you that you would be authorized, in such case, to find that the defendant intended ,to commit the injury, if any resulting from such conduct.”
No. 9 — “If you find frqm flip -evidence that the defendant was operating or driving an automobile on a. public 'highway outside of any incorporated city, town,,or village, at a speed greater than, 2’5 .miles per ho##,, the# ,1, instruct, you .that .such, speed was unlawful, and-if you further find, from the evidence,’.that by reason of such unlawful speed, if you so find a collision occurred proximately causing the death of one William C. Barton, then you would be authorized to find the defendant guilty as charged. "
No.10 — “The States is not required to prove that the defendant was driving his automobile at a speed
These instructions are apparently based on §10476c Burns 1914, Acts 1913' p. 779. This section ¡reads’as ■follows: .“No person shall drive -or .operate a motor vehicle or motor bicycle upon any public highway in •the ¡ state at a speed -greater than, is reasonable or ¡■prudent,.having regard to. the traffic and the use*of the way or so as to endanger the life' or limb or-injure -the property.of any person. If the rate of speed of any motor vehicle- or motor, bicycle’ operated upon any ■ public .highway or other place in-this state where the same passes through the closely built up business por- - tion of any incorporated city, town or village exceeds ten (10) miles an hour or if the rate of speed of any : motor vehicle or motor bicycle operated or driven on any public highway in the state, where the same passes Through the residence-portion of any 'incorporated eityj town or village exceeds fifteen (15)- miles an hour or if 'the rate of . speed of any motor vehicle or motor bicycle operated on.any public, highway in • this, state': outside the closely built up business portions . alxd- The residence pórtions within any ¡ incorporated: city, town or village exceeds twenty (20) miles an-hour- or upon any public highway outside, of the-limits-of an incorporated city or town or, village if- the .rate of speed' exceed.twenty-;five ¡(25)¡-miles ■per-hour,-such rate of speed- shall Reprima .facie evi
The common law required the driver to take into consideration all of the surrounding and attending conditions and circumstances, including the traffic and use of the way and the danger to life and limb and to the property of others as specifically mentioned in the statute; and that he must control his speed and regulate his conduct in driving or operating the vehicle in such a way as to comport with the manner in which a person of ordinary prudence would operate a similar vehicle under like conditions and circumstances. It thus appears that the duty to exercise ordinary care imposed by common law as the same applies to drivers of motor vehicles was not changed or enlarged by the statute quoted. In so far as a statute conforms to the common law, it is simply declaratory of the rules as they were, previously stated and applied under the common law, and such affirmatory part of the statute cannot be given any other force or effect. Baker v. Baker (1859), 13 Cal. 87; Cumberland Tel., etc., Co. v. Kelly (1908), 160 Fed. 316, 87 C. C. A. 268, 15 Ann. Cas. 1210; 2 Lewis’ Sutherland, Statutory Construction (2d ed.) §§329,
If the legislature has power to make, common-law negligence in the operation of a motor-driven vehicle a misdemeanor without specifying the particular act or acts of negligence which constitute the offense, §19 of the act, taken in connection with-the section quoted, has that effect. This question the court does not decide,- for the reason that it is not presented, and for the further reason that the conclusion reached is not dependent on the decision of that question.
dicial to .the*-rights bf;appellant... ■-The.eightli instruction is not so objectionable as the ninth, hut it contains an expression by the court from which the jury would understand that the statute quoted fixed a rate, 4>f.,speed which could,not ¡he exceeded without a violation of the statute. What has been said in reference to the eighth mstfuction applies with greater force to the tentin' Both of these instructions were erroneous and neither; of them should, have been"given.
Several other questions, based on the action of the court in giving and refusing instructions, are presented. These questions are not discussed, for the reason that the law applicable to most of the questions so presented has been discussed in an opinion recently handed down by this court. Dunville v. State (1919), 188 Ind. 373, 123 N. E. 689.
The court is of the opinion that a consideration of the principles of law stated in the case last cited and those set out in this opinion will prevent error in a retrial of this case.
The trial court erred in overruling appellant’s motion for a new trial. Judgment reversed, with instructions to sustain such motion and for other proceedings not inconsistent with this opinion.