120 Wash. 659 | Wash. | 1922
—The defendant was charged with the
crime of manslaughter, was found guilty by a jury,
The conviction indicates the strength of the state’s charge that, on December 10, 1920, in the city of Spokane, the appellant, in driving an automobile on the streets of the city at an unlawful rate of speed, and in such a reckless manner as to endanger the safety of others, ran upon, carried along, and threw to the ground Mrs. S. Kirkpatrick, a pedestrian lawfully on the street, and killed her. The scene of the collision was the intersection of Sprague avenue and Division street. It occurred a few minutes before five o’clock in the afternoon, when, according to all the testimony, it was dark, windy, raining, snowing and sleeting. Because of a viaduct, poorly lighted, over and along Sprague avenue, and heavy traffic, all the witnesses examined on the subject testified that the intersection in question was the most dangerous place for travel in the city, especially at that hour after dark. The appellant traveled east on the avenue, and on reaching Division street, passed by an automobile that had slowed down or stopped to avoid traffic approaching from the right, and on reaching the alignment of the east sidewalk of Division street extended into the avenue, ran into Mrs. Kirkpatrick, who in some way became fastened in and under the front of appellant’s car. Without checking his car, he continued east. There were a number of persons at or near the scene, who, upon hearing the woman’s screams, followed in pursuit of the car. Others who were passed or met, hearing the woman’s continuous screams and observing her dangling body striking the ground, joined in the chase, and together with pedestrians, unavailingly yelled at the appellant to stop his car. The proof on behalf of the state showed that, from Division street, he increased the speed of his car, and that, upon reach
The appellant testified that he did not see Mrs. Kirkpatrick, did not know he struck her, and that the speed of his car was at all time reasonable. He admitted traveling along the intersection under the viaduct about the time the accident occurred, and also admitted running up on the parking strip at Perry street. He admitted hearing screams and shouts, but thought they came from supposed joyriders or drunken persons in a machine h> noticed following close behind him. His version of or reason for his circuitous ride after turning into Perry street was somewhat different from that given to the officers who arrested him, as they had testified.
On cross-examination the appellant testified that, at or about the time specified, at a given place and in the presence of one William Bowman, he had not said in substance that, if ever he ran into anybody, they would have a hard time getting him. In rebuttal, William Bowman was called for the prosecution and, over the objections of appellant, testified to a conversation with the appellant, at the time and place mentioned, more than a year prior to the accident, as follows: “He was talking about the case he had. He had run into a car here in Spokane and was sued for damages, anyway he had a case of some kind in court and I mentioned
Conceding the statements were made, it is manifest they were made in the consideration of a past transaction and were considerably remote in point of time. They contained no element of threat, nor did they relate to any time, place, person or property, or class of persons or property, and for aught that appears in the testimony the appellant was at all times wholly unacquainted, directly and indirectly, with the person injured, and the record is barren of proof tending to show any habit or previous instance of reckless driving on the part of the appellant. Upon due consideration, we are of the opinion that allowing the testimony of the witness Bowman to go to the jury was prejudicial error.
Exception was taken to instructions giving the rule of law applicable to the speed limit of twelve miles an hour at crossings in the thickly settled or business portions of the city, upon the claim that there was no evidence that the street crossing in question was so situated. But we think there was sufficient evidence, direct and reasonably inferential, to show the crossing in question was so situated. The contention that there was no testimony showing the speed of appellant’s car to have, been in excess of twelve miles an hour at the crossing would not make the instruction prejudicial, but to the advantage of the defense. However,
Section 5562-28, Eem. Code, is as follows:
“In case of accident to a person or property on the public highways due to the operation thereon of a motor vehicle, the person operating such vehicle shall stop, and upon request of the person injured or of any person present, shall give to such person Ms name and address, and if not the owner of such vehicle, the name and address of such owner, and the name and address of other persons accompanying him.”
Evidently with the statute in mind, the jury was instructed as follows:
“It is the law of the state of Washington that in case of accident to a person on the public highways due to the operation thereon of a motor vehicle, the person operating such veMcle shall stop, and upon request of the person injured or of any person present shall give to such person his name and address. If the jury find from the evidence in this case beyond a reasonable doubt that the defendant on the 10th day of December, 1920, in the county of Spokane, WasMngton, was the driver of an automobile which ran upon or collided with Mrs. S. Kirkpatrick, and the jury further find beyond a reasonable doubt that the defendant knew or in the exercise of ordinary care and prudence ought to have known that said automobile had then and there collided with some person, and that the defendant failed thereupon to stop, and that by reason of such failure to stop the said Mrs. Kirkpatrick received injuries*664 from which she died, then yonr verdict should be guilty.”
This instruction was duly excepted to, and the giving of it has been assigned as error. The appellant was not charged with a violation of the statute upon which the instruction was manifestly based. He was charged with the killing of a person as the result of his criminal negligence, consisting of fast and reckless driving. The statute just referred to is in no way in this case, and therefore the instruction was confusing, misleading, and erroneously given, to the prejudice of the rights of the appellant.
The assignment of error that the court should not have given any instruction defining negligence with reference to its being the cause of the injury is not well taken. The proper theory of the state’s case was that the appellant had committed an act of criminal negligence, gross carelessness, resulting in the death of Mrs. Kirkpatrick.
The assignments of error cover, among other things, seventeen instructions that were given, and the refusal of the court to give thirteen requested by the appellant. They are of considerable length, and a careful examination of them in the light of the evidence in the case convinces us that the objections to those given, other than the ones already referred to, do not merit separate and distinct consideration. Other than the error already pointed out, they are, considered altogether, a clear and proper exposition of the law applicable to the facts presented to the jury. The thirteen requested instructions that were refused we find were either given in effect or were not proper to be given.
The motion for a directed verdict of not guilty was properly denied. The motion for a new trial, in addition to subjects already discussed, presents certain
Because of the errors pointed out herein, the judgment is reversed with directions to grant a new trial. Parker, C. J., Tolman, and Bridges, JJ., concur.
