In considering defendant’s challenge as to the sufficiency of the indictment in this action, it is important to bear in mind that the state charges decedent was killed by defendant in the commission of an unlawful act. It is not a case of involuntary manslaughter predicated on the doing of a lawful act “without due caution or circumspection,” as provided in Section 1898, Or. L. The allegations of the defendant’s alleged unlawful act in driving his automobile at a dangerous and unreasonable rate of speed follows the language of subdivision 16, Section 2, Chapter 371, Laws of Oregon for 1921, which provides as follows:
“Every person operating a motor vehicle on the public highways of this state shall drive the same in a careful and prudent manner, not to exceed thirty miles per hour * * , and in no case at a rate of speed that will endanger the property of another, or the life and limb of any person.”
This pleading is sufficient in view of the fact that the defendant is definitely apprised of the nature and cause of the accusation against him:
State
v.
Watson,
“The statute describes the acts which constitute the crime. The indictment describes the acts with which the defendant is charged in the same language which is employed in the statute to define the prohibited acts. The indictment contains every element of the complete offense as that offense is defined by the statute. The state is not required to plead the evidence relied upon to prove the acts alleged to have been committed by the defendant. The indictment advises the defendant not only of the nature, but also of the cause, of the accusation made against him. The language employed is such as to enable a person of common understanding to know what is intended.”
If defendant desired that the state be required to allege the particular acts constituting the crime, he should have, in accordance with Section 1491, Or. L., demurred to the indictment because it did not substantially conform to the requirements of Chapter VII, Title XVIII, of the Code, which, in reference to the matter under consideration, provides:
“The indictment must be direct and certain, as it regards: (1) The party charged; (2) the crime charged; and (3) the particular circumstances of the crime charged when they are necessary to constitute a complete crime.” Section 1440, Or. L.
Otherwise all objections to the indictment are deemed to have been waived, excepting objections pertaining to jurisdiction of the court and that facts are not alleged sufficient to constitute a crime:
State
v. Goodall,
If tbe defendant bad been indicted for having committed tbe crime of involuntary manslaughter by tbe doing of a lawful act “without due caution or circumspection,” it would have been necessary under that theory to have alleged specifically tbe facts constituting such negligence. Tbe rule in alleging negligence in civil actions would then apply. This distinction in pleading is recognized in
People
v.
Ryczek,
“Tbe distinction between involuntary manslaughter committed while perpetrating an unlawful act not amounting to a felony and tbe offense arising out of-some negligence or fault in doing a lawful act in a grossly negligent manner and from which death results must Tie kept in mind upon tbe question of pleading. In tbe former case it is sufficient to allege tbe unlawful act with sufficient particularity to identify it and then to charge that as a consequence tbe defendant caused tbe death of tbe deceased, and there is no need to aver in detail tbe specific acts of the accused; but in case of manslaughter committed through gross or culpable negligence while doing a lawful act tbe duty which was neglected or improperly performed must be charged as well as tbe acts of tbe accused constituting failure to perform or improper performance. ’ ’
Appellant relies strongly upon
State
v.
Gesas,
In
State
v.
Lantz,
Error is predicated upon the ruling of the court permitting witness Mrs. Bunn to answer the question, “Did you hear the sound of any siren, whistle, or horn?” She replied, “There was no siren, whistle, or hom.” Appellant contends this testimony was irrelevant under the issues and highly prejudicial. This testimony was admissible to establish the charge that defendant was driving in a careless, imprudent, and unlawful manner. Whether defendant actually did give warning of his approach was a question for the jury.
It is contended that error was committed in admitting the testimony of A. R. Fairbanks, who went to the scene of the accident the following morning, and said that he traced skid-marks for a distance of approximately 230 feet on the pavement. Witness McEachern was about 150 or 200 feet away at the time decedent was struck, and testified that he traced the skid-marks in question to the automobile in the ditch. He said there were no marks of this kind prior to the accident and that the marks leading to the automobile were discernible on the pavement for a period of ten days or two weeks. There was no substantial change in conditions, and we think this and other evidence of similar import, to which objec *418 tion was made, is admissible: People v. Ryczek, supra. It was also proper to admit the map in evidence for reference purposes upon which appeared skid-marks leading to where the automobile stopped.
Exception was taken to refusal of the court to give the following requested instruction:
“I instruct you, as a matter of law, that this defendant-, Frederick L. Miller, has a right to operate his automobile upon the highway at this place at a rate of speed of thirty miles an hour, and this speed applies to the time of the accident. What speed he may have been going when he started down the hill or at some other place is irrelevant and immaterial. Any speed before that cannot be considered by you as proving that he is guilty, except that it may be taken in consideration as a circumstance in determining the speed at which he was going at the time of the accident; but, as stated to you before, was he going over thirty miles an hour at the time of the collision, and was that the proximate cause of the death of Mrs. Halir’
It was not necessarily a question of whether defendant Was driving in excess of thirty miles an hour at the time of the accident. The degree of care which must be used is commensurate with the danger involved. Situations may readily be conceived where it would be negligent to drive at the rate of ten miles per hour, or to move the car at all. It was for the jury to say, under all the facts and circumstances, whether defendant exercised that degree of care and caution which would have been exercised by an ordinarily prudent person under similar circumstances. The instruction given by the court relative to this phase of the case was a clear and accurate statement of the law, and there was no error in refusing to give the instruction requested.
Appellant requested the following instruction:
*419 “I further instruct you that it was the duty of Mrs. Hall before crossing this pavement to look and listen and to see if any cars were approaching. It was her duty to use her senses, her eyes and her ears to avoid being injured. If she could have looked up the road and seen this car coming and by the exercise of ordinary care could have avoided it, and if you find that she did not do this, and that as the result thereof, this collision occurred, and that the negligence of Mrs. Hall was the sole cause of her death, then I instruct you that this defendant would not be guilty of the crime of manslaughter. ’ ’
But the court gave the same in the following modified form, to which exception was taken:
“I further instruct you that it was the duty of Mrs. Hall before crossing the pavement to look and listen and see if any cars were approaching. It was her duty to use her senses, her eyes and her ears to avoid being injured. If she could have looked up the road and seen this car coming, and by the exercise of her care could have avoided it, and if you find that she did not do this, and that as a result thereof this collision occurred, and that the negligence of Mrs. Hall was the sole cause of her death, and that the defendant was not driving in a careless and imprudent manner and at a dangerous rate of speed, as alleged in the indictment and as defined in these instructions, then I instruct you that this defendant would not be guilty of the crime of involuntary manslaughter. If the defendant was driving in the careless and imprudent manner and at a dangerous rate of speed as alleged in the indictment, then the carelessness of Mrs. Hall would not be a defense to this defendant. ’ ’
The instruction requested was sound, but was apt to be misleading in view of the fact that contributory negligence in an action of this kind is no defense:
State
v.
Campbell, supra; State
v.
Disalvo
(Del.),
Ernest Younger was called as a witness to impeach Mrs. Holland, relative to an alleged statement she made to him concerning the rate of .speed the defendant was traveling at the time of the accident, and was not permitted to testify about such matter for the reason the court was of the opinion that a proper foundation for such impeaching’ question had not been established. We think no error was committed in this respect. The basis for such impeaching question is disclosed by the record in the examination of Mrs. Holland:
“Q. Now, you know Ernest Younger, don’t you?
“A. Yes, sir.
“Q. You have known him for several years, haven’t you?
“A. A short time, yes.
“Q. Do you remember meeting him a few days after the accident and your having a conversation with him as to the rate of speed that Mr. Miller was traveling at the time of the accident?
“A. When was that?
“Q. A day or so after the accident you met him on the street or somewhere?
“A. I met Mr. Younger, yes.
“Q. Do you remember a conversation you had with him regarding the rate of speed you were going when lie asked you how fast you were going at that time ?
“A. Yes, and I told him that I was going— * *”
*421 “Q. I will ask you whether you didn’t state at that time to Mr. Younger when he asked you how fast you were going at that time,, that you were going twenty-five miles an hour?
“A. I believe not.”
Did counsel sufficiently comply with the provisions of Section 864, Or. L., by relating to the witness her alleged statements, together “with the circumstances of times, places and persons present”? We are not unmindful that the object of the statute is for the protection of the witness and to enable her to recall the alleged conversation, and that when it definitely appears that such is identified in the mind of the witness it is immaterial that some of these preliminary recitals, required by statute, are not as definite as they should be. The record does not convince us that Mrs. Holland knew of the precise conversation upon which counsel for appellant sought to impeach her. She was well acquainted with Younger and it is reasonable to assume that she might have had several conversations with him. To ask the witness whether this alleged statement occurred on the ‘‘ street or somewhere” is not sufficiently definite.
Other assignments of error are deemed of no merit.
The judgment of the lower court is affirmed.
Affirmed. Behearing Denied.