250 N.C. 93 | N.C. | 1959
The criminal conduct .charged is ¡the operation of an automobile at an excessive and unlawful speed, causing the vehicle to turn over, .thereby killing Goode, who was an occupant with defendant.
Defendant was the owner and operator of the automobile. It was stipulated that death was caused by /the .wrecking of the .automobile.
Defendant 'argues there was no credible evidence from which a jury could find the automobile was being operated at an unlawful rate of speed and because of the absence of such evidence, his motion to non-suit, his only assignment of error, should have been allowed.
To show unlawful speed and culpable negligence, the State offered
Witness Lawing, riding with Kearns, testified that defendant “passed us doing about 50 to 60 m.p.h. and he pulled on away from us. You could see his tail lights at certain points and then we seen the flash of his lights up -in the air. I saw the car from the time it passed me till it reached the curve. In my own opinion I would say the car was going 'between 70 and 80.1 base my opinion on the way he walked off .and left us. He gradually pulled away from us and speeded up.”
Defendant assumes that his conviction rests solely on the estimate by Hawing that he was going 70 to 80 m.p.'h.; and based on that assumption, 'he asserts his motion to nonsuit should have been allowed because the testimony was lacking in probative value. Defendant cites S. v. Roberson, 240 N.C. 745, 83 S.E. 2d 798, and Tyndall v. Hines Co., 226 N.C. 620, 39 S.E. 2d 828, as supporting his contention. The opinion as to speed given in those cases was predicated on facts other -than an observation of the moving vehicle.
Here the vehicle passed Hawing at an estimated speed of 50-60 m.p.'h. He continued to observe it and noted the increase in speed. Defendant did not 'by exception challenge its competency.
Defendant's conviction does not rest solely on the testimony of Hawing. That testimony was competent and sufficient if accepted by the jury to support the verdict. The weight to be given to Hawing’s estimate of 'speed was a matter for the jury. Lookabill v. Regan, 247 N.C. 199, 100 S.E. 2d 521; S. v. Becker, 241 N.C. 321, 85 S.E. 2d 327;
No error.