271 N.W. 765 | S.D. | 1937
The defendant, Herbert Bates, was convicted of manslaughter in the second degree. The conviction was the result of an automobile collision between two cars, one of which was driven by the defendant. One Gertrude Goodell died as a result of the collision. The defendant, Miss Goodell, and four other persons left the city of Huron about 10 o'clock on the night of August 1, 1934, in the car driven by the defendant to attend a dance being held some distance from Huron. This party started east on Highway No. 14, which is a paved highway running several *107 miles east of Huron. On this Highway No. 14 and on the outskirts of the city of Huron, there is what is known as an S-curve. This curve is described in appellant's brief, as follows: "After leaving the city of Huron one crosses a concrete bridge on the James River, then the road curves to the left and crosses under an overhead railway crossing, then turns to the right and continues more or less in a straight course to some gardens where there is a curve 670 feet long, which is a two-degree curve. This is a very slight curve. The next curve is what is called a four-degree curve. The general width of the pavement is 20 feet, although this varies somewhat on curves." There is quite a pronounced upgrade toward the east along the S-curve in the road, and the collision occurred at the top of the grade where a road from the south intersects the paved highway. The car driven by the defendant was coming around these various curves on the paved highway and collided with the car coming onto the paved highway from the south which was being driven in from the road which intersects the paved highway at the top of the grade.
[1, 3] The above statement of facts is sufficient for our present purpose. We discuss the assignment of error which questions the instructions of the court in submitting the case to the jury. This assignment raises the question of the meaning of the term "culpable negligence" as used in section 4024, R.C. 1919. Said section 4024, so far as here material, is as follows: "Every killing of one human being by the * * * culpable negligence of another, * * * is manslaughter in the second degree." Courts are not entirely in accord on the exact meaning of the term "culpable negligence," as used in statutes similar to our section 4024. See Berry, Law of Automobiles, vol. 5, p. 537.
In the State of Wisconsin prior to 1929 there was a statute almost identical to the statute we are now considering, and the Wisconsin court in the case of Clemens v. State,
[4, 5] This court was confronted with a problem very similar to that with which we are now confronted in the case of Melby v. Anderson,
[6] Defendant's requested instruction No. 5 gave practically the same meaning to the term "culpable negligence" that we have given to it herein. This requested instruction was refused. An examination of the instructions given by the court does not disclose that the court included within its instructions the meaning of the term "culpable negligence," as we have herein defined it. We think this was error prejudicial to the defendant.
The judgment and order appealed from must be, and are, reversed.
POLLEY and WARREN, JJ., concur.
ROBERTS and SMITH, JJ., not sitting. *110