State v. Becker , 241 N.C. 321 ( 1955 )

85 S.E.2d 327 (1955) 241 N.C. 321

STATE
v.
Albert Tracy BECKER.

No. 651.

Supreme Court of North Carolina.

January 14, 1955.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

Adam Younce, Greensboro, for defendant.

DENNY, Justice.

The defendant's assignment of error No. 3 challenges the correctness of the ruling of the court below in refusing to sustain his motion for judgment as of nonsuit interposed at the close of the State's evidence and renewed at the close of all the evidence.

As a basis for consideration of the above assignment of error, we have endeavored to set forth a comprehensive and accurate statement of the pertinent parts of the evidence adduced in the trial below.

The result of this accident is indeed regrettable, irrespective of what happens to the defendant. However, his conviction should not be upheld unless the record discloses evidence of culpable negligence on his part.

As a preliminary question and before disposing of the above assignment of error, we shall consider the assignment of error based on the exception to the admission of the evidence of Mrs. Phillips as to the speed of the defendant's car at the time of the accident. Mrs. Phillips testified that in her opinion the defendant's car was traveling fifty-five miles per hour when she first saw it at a point fifteen feet from her. She also testified that after she saw the car only fifteen feet away, she looked toward her husband and saw him shove her son out of the pathway of the car before it struck her and the girls. It is a mathematical fact that a car traveling fifty-five miles an hour travels eightyone feet per second. The undisputed evidence on this record, if Mrs. Phillips was correct in her estimate of the distance between her and the car when she first saw it, is that the car stopped within twenty-five feet of that point. It would seem as a matter of common knowledge and experience that it would have been a physical impossibility for the defendant to have stopped his car in so short a distance if at the time in question it was traveling at such a rate of speed. Ingram v. Smoky Mountain Stages, 225 N.C. 444, 35 S.E.2d 337. As the late Chief Justice Stacy said in State v. Hough, 227 N.C. 596, 42 S.E.2d 659, 660, "Physical facts speak their own language and are often heard above the voices of witnesses." Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88.

There is no controversy as to the general rule applicable to the admission of evidence as to speed. Hicks v. Love, 201 N.C. 773, 161 S.E. 394; Tyndall v. Harvey C. Hines Co., 226 N.C. 620, 39 S.E.2d 828; State v. Roberson, 240 N.C. 745, 83 S.E.2d 798.

In 5 Am.Jur., Automobiles, section 651, page 860, et seq., it is said: "* * * it is generally held that one of reasonable intelligence and ordinary experience in life is presumed to be capable, without proof of further qualification, to express an opinion as to how fast an automobile which came under his observation, was going at a particular time. * * * The question as to the opportunity of the witness to judge, under the particular circumstances, the speed of an automobile, has been held, as a general rule, to go to the weight of his testimony rather than to its admissibility. * * * But where a witness has had no reasonable opportunity to judge the speed of an automobile, it is error to permit him to testify in regard thereto" citing Annotation 70 A.L.R. 547. (Italics ours.) See also Annotation 94 A.L.R. 1192.

In Davidson v. Beacon Hill Taxi Service, 278 Mass. 540, 180 N.E. 503, 504, the witness was not allowed to give his estimate of the speed of a taxi which struck the plaintiff. Upon appeal the Court said: "The undisputed evidence of the witness was to the effect that he ran out of the alley into the street, and saw the defendant's taxicab for the first time when it was 15 feet away. The intervening time from when he first saw it until the plaintiff was struck could have been at most only a few seconds. During that time he was running to escape being struck. It is inconceivable that he could have had any intelligent opinion as to the speed of the taxicab in these circumstances. His estimate of its speed was too unreliable and untrustworthy to aid the jury upon that question. It was of no value as evidence." Bowling Green-Hopkinsville Bus Co. v. Edwards, 248 Ky. 684, 59 S.W.2d 584; Challinor v. Axton, 246 Ky. 76, 54 S.W.2d 600; Mutti v. McCall, 14 La.App. 504, 130 So. 229.

In our opinion, under the facts and circumstances disclosed by the evidence of Mrs. Phillips, she had no reasonable opportunity to judge the speed of the defendant's car, and her evidence with respect thereto was without probative value.

When the above evidence is disregarded, there is nothing to contradict the evidence of the defendant that he was proceeding north on Summit Avenue in the proper traffic lane at a legal rate of speed and saw Mr. Phillips and his son come into view and enter his lane of traffic about the time he entered the southern margin of the intersection of Summit Avenue and Bagley Street. True, the tires of the defendant's car left marks visible for a distance of fifty-two feet from the front of the car at the point where it was stopped. The wheels of the car skidded for some distance before the impact. The officer did not testify as to the length of the skid marks as compared with the tire marks. According to defendant's testimony, he slowed down as he entered the intersection and put on his brakes as quickly as he could when he saw some pedestrians ahead. These turned out to be Mr. and Mrs. Phillips and their children.

It is settled law with us that "a want of due care or a failure to observe the rule of the prudent man, which proximately produces an injury, will render one liable for damages in a civil action, while culpable negligence, under the criminal law, is such recklessness or carelessness, resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others." State v. Rountree, 181 N.C. 535, 106 S.E. 669, 671; State v. Whaley, 191 N.C. 387, 132 S.E. 6; State v. Cope, 204 N.C. 28, 167 S.E. 456; State v. Lowery, 223 N.C. 598, 27 S.E.2d 638; State v. Wooten, 228 N.C. 628, 46 S.E.2d 868; State v. Blankenship, 229 N.C. 589, 50 S.E.2d 724.

In the case of State v. Stansell, 203 N.C. 69, 164 S.E. 580, 582, this Court, speaking through Adams, J., said: "Ordinary negligence is based on the theory that a person charged with negligent conduct should have known the probable consequences of his act; culpable negligence rests on the assumption that he knew the probable consequences, but was intentionally, recklessly, or wantonly indifferent to the results."

If it be conceded that the evidence on this record is sufficient to support the view that the defendant was not keeping a proper lookout under the conditions as they existed at the time of the accident, in our opinion it is not sufficient to show culpable negligence on his part. State v. Lowery, supra; State v. Satterfield, 198 N.C. 682, 153 S.E. 155; State v. Tankersley, 172 N.C. 955, 90 S.E. 781, L.R.A. 1917C, 533.

The defendant's motion for judgment as of nonsuit should have been allowed.

Reversed.

PARKER, J., dissents.