State v. . Rountree
106 S.E. 669
N.C.
1921
Check Treatment
Stacy, J.

We have not stated all the evidence, because the foregoing would seem to be sufficient to dispose of the defendant’s appeal. Considering the testimony in its most favorable light to the State, the accepted position on. a motion of this kind, we think his Honor properly *538 submitted tbe case to the jury. S. v. Oakley, 176 N. C., 755; S. v. Carlson, 171 N. C., 818. Tbe Court’s inquiry upon sucb a motion is directed to tbe sufficiency of tbe evidence to support or warrant a verdict. (S. v. Hart, 116 N. C., 976), and not to its weight or to tbe credibility of tbe witnesses. S. v. Utley, 126 N. C., 997.

Tbe degree of negligence necessary to be shown on an indictment for manslaughter, where an unintentional killing is established, is sucb recklessness or carelessness as is incompatible with a proper regard for human life. S. v. Gash, 177 N. C., 595; S. v. McIver, 175 N. C., 761; S. v. Tankersley, 172 N. C., 955. Tbe negligence must be something more than is required on tbe trial of an issue in a civil action, but it is sufficient to carry tbe case to tbe jury in a criminal prosecution where it reasonably appears that death or great bodily barm was likely to occur. S. v. Gray, 180 N. C., 697. A want of due care or a failure to-observe tbe rule of tbe prudent man, which proximately produces an injury, will render one liable for damages in a civil action, while culpable negligence, under tbe criminal law, is sucb recklessness or carer lessness, resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to tbe safety and rights of others. S. v. Goetz, 83 Conn., 437; 30 L. R. A. (N. S.), 458.

Again, it is generally held that where one is engaged in an unlawful’ and dangerous act, which is itself in violation of a statute, intended and designed to prevent injury to the person, and death ensues, the actor would be guilty of manslaughter at least. S. v. McIver, supra. C. S., 2618, provides: “No person shall operate a motor vehicle upon the public highways of this State recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic, and use of the highway, or so as to endanger the property or the life or limb-of any person.” Then follows an enumeration of certain rates of speed at given places which shall be deemed as violations of the section.

But in fixing the maximum rate within a city or upon the public highways, the statute does not purport to establish a rate of speed which will be lawful under all circumstances. It must not be greater than is “reasonable and proper,” considering the time and place, and “having-regard to the width, traffic, and use of the highways,” nor should it be such “as to endanger property or the life or limb of any person.” Proper speed, under given conditions, may be excessive speed under others; and proper speed in the daytime might be grossly excessive at night. S. v. O’Brien, 32 N. J. L., 169; Commonwealth v. Pierce, 138 Mass., 165.

Section 2616 of the Consolidated Statutes also provides, in part, as-, follows: “Upon approaching a pedestrian who is upon the traveled part of any highway, and not upon a sidewalk, . . . every person operating a motor vehicle shall slow down and give a timely warning or signal *539 witb bis bell, born, or other device for signaling. Upon approaching an intersecting highway, a bridge, dam, sharp curve, or deep descent, a person operating a motor vehicle shall have it under control and operate it at such speed, not to exceed ten miles an hour, having regard to the traffic then on such highway and the safety of the public.”

If the defendant was operating his machine in disregard of these regulations, and thus occasioned the death of the deceased, he was engaged in an unlawful act. “Involuntary manslaughter,” says Wharton Am. Crim. Law (11 ed.), sec. 426, p. 622, “is where death results unintentionally, so far as the defendant is concerned, from an unlawful act on his part not amounting to a felony.” It does not appear from the evidence why the defendant left the central part of the road and ran out of the beaten path or traveled portion of the highway, nor does it appear why he did not turn aside so as to avoid the collision. Under these circumstances, the jury might well have found that the injury occurred in consequence of the recklessness of the driver, amounting to criminal negligence. S. v. Biewen, 169 Iowa, 256. See, also, S. v. Stitt, 146 N. C., 643.

The deceased was walking on the outer edge of the road, far from the traveled part of the highway, where he had a right to be. There were no other machines near. The view was unobstructed, and it is difficult to understand how the defendant could have struck the deceased with his car, under all the circumstances, without being guilty of culpable negligence. At any rate, the evidence was sufficient to be submitted to the jury, and they have so found.

No error.