State v. Roberson , 240 N.C. 745 ( 1954 )

83 S.E.2d 798 (1954) 240 N.C. 745

STATE
v.
David M. ROBERSON.

No. 78.

Supreme Court of North Carolina.

October 13, 1954.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Gerald F. White, Raleigh, Member of Staff, for the State.

LeRoy Scott, Washington, D. C., for defendant appellant.

WINBORNE, Justice.

The determinative assignment of error on this appeal is based upon defendant's exception to denial of his motion for judgment as of nonsuit. The exception is well taken.

While it is a general rule of law, adopted in this State, that any person of ordinary intelligence, who has had an opportunity for observation, is competent to testify as to the rate of speed of a moving object, such as an automobile, Hicks v. Love, 201 N.C. 773, 161 S.E. 394; Jones v. Bagwell, 207 N.C. 378, 177 S.E. 170; Tyndall v. Harvey C. Hines Co., 226 N.C. 620, 39 S.E.2d 828; Brafford v. Cook, 232 N.C. 699, 62 S.E.2d 327, one who did not see the moving object or automobile in motion is not competent to give an opinion as to its speed. Tyndall v. Harvey C. Hines Co., supra, and cases cited. Also Carruthers v. Southern Ry. Co., 232 N.C. 183, 59 S.E.2d 782.

Testing the evidence offered upon the trial in Superior Court as shown in case on appeal, by this rule, it appears that the opinion evidence as to speed of defendant's automobile comes from witnesses who did not see his automobile before the collision. The witness Patrick swore "I never even saw the Roberson car until it hit me". And the highway patrolman came to the scene to investigate the collision. Hence, neither Patrick nor the highway patrolman was a competent witness to testify as to the speed of defendant's car, and their testimony in this respect is without probative value, Tyndall v. Harvey C. Hines Co., supra; Carruthers v. Southern Ry. Co., supra.

In the Carruthers case, supra, each witness offered estimates of the speed of defendant's car based on the result of the impact—for which purpose it was held that each was not a competent witness.

Therefore, stripping the evidence of the State of the estimates of speed as given by these witnesses, there remains in the State's evidence no estimates of the speed of defendant's automobile. And defendant in his testimony stated that he could not have been going over 35 or 40 miles per hour at the outside.

Hence the question arises as to whether or not the physical facts, the skidding of defendant's car and the result of the impact upon Patrick's truck, under the attendant circumstances, standing alone, are sufficient to take the case to the jury on the charge of reckless driving as defined by G.S. § 20-140. We hold that the answer should be "No".

This statute, G.S. § 20-140, declares that "any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving, and upon conviction shall be punished * * *".

The language of this statute constitutes culpable negligence. And culpable negligence in the law of crimes is something more than actionable negligence in the law of torts. Indeed, in the law of torts the mere fact of the skidding of an automobile is not of itself such evidence of negligence in the operation of an automobile as to render the owner liable for an injury in consequence thereof. Skidding itself does not imply negligence. Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406; Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 42 S.E.2d 593.

Moreover, it is not amiss to note (1) that the case on appeal discloses that Patrick has sued defendant in a civil action, and (2) that considerable space was given in the trial below to matters pertaining to civil issues. We think the controversy belongs in the forum of the civil courts.

Reversed.