State v. McLean , 234 N.C. 283 ( 1951 )

67 S.E.2d 75 (1951) 234 N.C. 283

STATE
v.
McLEAN.

No. 220.

Supreme Court of North Carolina.

October 17, 1951.

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

Seawell & Seawell, Carthage, for defendant appellant.

VALENTINE, Justice.

This appeal presents two questions: (1) Was the evidence considered in the light most favorable to the State sufficient to withstand defendant's motion for judgment as of nonsuit? (2) Did the Court below comply with G.S. § 1-180 in its charge to the jury? Both of these questions must be answered in the affirmative.

It has long been a violation of the common law to inflict injury upon a human being by culpable negligence, and if death results, the offender under certain circumstances may be called upon to answer to the charge of manslaughter or even murder. State of Wisconsin v. Whatley, 210 Wis. 157, 245 N.W. 93, 99 A.L.R. 756.

With the development of civilization and the resulting transition from animal-drawn vehicles to the intricate and expansive system of motorized transportation, it has become necessary for the protection of life and property to enact and maintain a code of rules regulating the operation of motor vehicles on the highways. A part of this code is G.S. § 20-140, which is as follows: "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 as provided in § 20-180."

A violation of this statute may subject the offender to both civil and criminal liability. There may be a violation of this statute as a result of which the offender is subjected, in addition to the civil liability, only to the penalty prescribed by the statute, but when the negligent acts are reckless to the point of culpability and are sufficient to evince a complete and thoughtless disregard for the rights and safety of other persons using the highways, it then becomes criminal negligence and the driver of a motor vehicle so offending may be called upon to answer for manslaughter.

The distinction between criminal and civil liability arising out of the reckless operation of an automobile on the public highways of North Carolina is clearly pointed out in State v. Cope, 204 N.C. 28, 167 S.E. 456, 457, where it is said:

"Actionable negligence in the law of torts is a breach of some duty imposed by law or a want of due care—commensurate care under the circumstances—which proximately results in injury to another. Small v. So. Public Utilities Co., 200 N.C. 719, 158 S.E. 385; Eller v. Dent, 203 N.C. 439, 166 S.E. 330; Hurt v. Western Carolina Power Co., 194 N.C. 696, 140 S.E. 730; Ramsbottom v. Atlantic Coast Line R. R., 138 N.C. 38, 39, 50 S.E. 448; Drum v. Miller, 135 N.C. 204, 47 S.E. 421, 65 L.R.A. 890.

"The violation of a statute or ordinance, intended and designed to prevent injury to persons or property, whether done intentionally or otherwise, is negligence per se, and renders one civilly liable in damages, if its violation proximately result in injury to another; for, in such case, the statute or ordinance becomes the standard of conduct or the rule of the prudent man. King v. Pope, 202 N.C. 554, 163 S.E. 447; Godfrey v. Queen City Coach Co., 201 N.C. 264, 159 S.E. 412; Taylor v. Stewart, 172 N.C. 203, 90 S.E. 134.

* * * * * *

"Culpable negligence in the law of crimes is something more than actionable negligence in the law of torts. State v. Stansell, 203 N.C. 69, 164 S.E. 580; State v. Rountree, 181 N.C. 535, 106 S.E. 669.

"Culpable negligence is such recklessness or carelessness, proximately 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. Whaley, 191 N. C. 387, 132 S.E. 6; State v. Rountree, supra.

* * * * * *

"However, if the inadvertent violation of a prohibitory statute or ordinance be accompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others, then such negligence, if injury or death proximately ensue, would be culpable, and the actor guilty of an assault or manslaughter, and under some circumstances of murder. State v. Trott, supra (190 N.C. 674, 130 S.E. 627, 42 A.L.R. 1114); State v. Sudderth, supra (184 N.C. 753, 114 S.E. 828, 27 A.L.R. 1180); State v. Trollinger, 162 N.C. 618, 77 S.E. 957; State v. Limerick, 146 N.C. 649, 61 S.E. 568; State v. Stitt, 146 N.C. 643, 61 S.E. 566, 17 L.R.A.,N.S., 308; State v. Turnage, 238 N.C. 566, 49 S.E. 913."

The evidence of the State, which was accepted by the jury, brings the conduct of the defendant within the culpable negligence rule and subjects him to criminal responsibility for the wrongful acts which resulted in the death of James Edward Medlin.

This case does not turn upon the question of defendant's intoxication, although there was substantial evidence on that point which the jury was entitled to take into consideration. The fact of intoxication may well have been a contributing factor in the defendant's reckless operation of his automobile. He knew that Medlin was perched precariously on his running board and that he might be seriously injured or killed by the swaying motion of the automobile, whether it came in contact with another vehicle or not, and notwithstanding this fact, the defendant at a speed of 40 to 50 miles an hour drove through a cloud of dust of sufficient density to interfere with his vision, swinging his car back and forth across the highway.

The Court fully instructed the jury as to the evidence and the contentions of the parties and defined the law applicable thereto. "If the defendant desired further elaboration and explanation of the law he should have tendered prayers for instructions. In the absence thereof he cannot now complain." State v. Gordon, 224 N.C. 304, 30 S.E.2d 43, 46 (decided prior to 1949 amendment).

The remaining exceptions in the record have been carefully examined and each is found to be without merit. The Judge's charge substantially complied with all the provisions of G.S. § 1-180, as amended by Chapter 107, Session Laws 1949. On the entire record defendant appears to have had a fair and impartial trial and as no reversible error has been made to appear, the result will be upheld.

No error.