172 Misc. 1100 | New York Court of Special Session | 1939
The information states that defendant “ did commit the crime of speeding in violation of paragraph b of subdivision 1 of section 56 of the Vehicle and Traffic Law by wrongfully, unlawfully, willfully and knowingly operating a motor vehicle on the public highway at a rate of speed exceeding forty miles per hour for a distance greater than one-quarter mile.”
Defendant’s objection to the form of the information was well taken. It omits an essential element of the offense described by section 56. The statute does not prohibit a speed of more than forty miles per hour. It requires operators of motor vehicles to drive in a careful and prudent manner and provides that a rate of speed greater than forty miles per hour for a distance of one-fourth of a mile is presumptive evidence of careless and imprudent driving. The information is fatally defective in failing to charge the defendant with careless and imprudent driving. The same question arose in People v. Payne (71 Misc. 72), where the court said (at p. 75): “ The informations do not allege that the defendants were driving their automobiles carelessly and imprudently. * * * It is merely stated, in substance, that the defendants were driving * * * at a rate of speed exceeding thirty miles an hour * * *. This is obviously no violation of the statute, as the informations have failed to charge the defendants with a violation of either of the essential provisions of the statute, namely, that they were driving carelessly and imprudently or that they were exceeding a speed of thirty miles an hour for a distance of one-fourth of a mile.” (Italics supplied.) (See, also, People ex rel. Dixon v. Lewis, 276 N. Y. 613.)
The information does not mention heavy traffic. It relies, for proof of careless and imprudent driving, upon the presumption alone. When complainant testified to defendant’s speed the presumption operated to establish prima facie proof of careless and imprudent driving. However, under the well-settled rules of evidence applicable to presumptions, the presumption of careless and imprudent driving vanished when defendant contradicted it by testifying to the safe condition of his vehicle and of the highway. In my opinion, the People could not revive the presumption by rebuttal testimony indicating that hazardous traffic conditions existed. Defendant’s evidence caused the presumption to disappear entirely. (5 Wigmore on Evidence [2d ed.], § 2491.) From that point on the case was as free from the presumption as though it had never existed. Professor Wigmore said: “ It must be kept in mind that the peculiar effect of a presumption ‘ of law ’ * * * is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary * * * the presumption disappears as a rule of law.” (Italics supplied.)
Similarly, the United States Supreme Court in construing a State statute that raised a presumption of negligence where damages were inflicted by the operation of railroad cars, said: “ The only legal effect of this inference [of negligence] is to cast upon the railroad company the duty of producing some evidence to the contrary. When that is done the inference is at an end, and the question of negligence is one for the jury upon all of the evidence.” (Mobile, J. & K. C. Railroad Co. v. Turnipseed, 219 U. S. 35, 43.) (Italics supplied.)
Once the presumption was removed from the case at bar the only evidence of careless and imprudent driving was complainant’s testimony respecting defendant’s speed and the traffic conditions. As the information is silent on the subject of traffic conditions, a conviction resting upon such testimony under such an information would constitute a clear variance from the charge.
The Legislature had the power to forbid a speed greater than forty miles per hour. It did not do so by section 56. Ample speed limitations are provided by other laws. Local ordinances define prohibited speeds in congested municipalities. By a recent amendment the Vehicle and Traffic Law provides for the establishment of maximum speed limits within marked and designated speed zones (Vehicle and Traffic Law, § 95-c, as added by Laws of 1936, chap. 910), and persons exceeding such speed limits may be prosecuted under that statute without reference to subdivision 1 of section 56. (Op. Attorney-Gen. [1937] p. 207.) A county ordinance, under which this defendant might have been prosecuted, prescribes a maximum speed of forty miles an hour for the parkway on which he was traveling. Paragraph b of subdivision 1 of section 56 was not intended to be used as a maximum speed regulation and an information drawn under it which alleges no acts of careless and imprudent driving beyond the presumption of carelessness arising out of speed, will not support a conviction when the defendant offers any evidence of careful driving.
I regret that I am constrained, for the foregoing reason, to grant the motions to dismiss and to discharge the defendant. He was driving too fast and without regard for the safety of others. Under a proper information the evidence would have warranted his conviction.