State v. Adamson , 101 Utah 534 ( 1942 )

From a conviction of involuntary manslaughter and judgment thereon in the District Court of Salt Lake County defendant appeals. The assigned errors fall into two groups: (1) The insufficiency of the evidence to sustain the verdict, and (2) errors in the giving and refusing of instructions. There is no conflict in the evidence. The dispute arises as to the interpretation thereof and the inferences that may be drawn therefrom. The facts are as follows: Shortly after 8:00 P.M. on August 8, 1940, the defendant was driving a gasoline truck south on Second West Street in Salt Lake City. From about 4th South to 9th South he was followed by one Moulton in an automobile. Moulton testified that at some point between 4th and 9th South (not otherwise located), the speed was somewhere between 35 and 40 miles per hour. As they approached the intersection of 2nd West and 9th South streets, the semaphore was red as to north and south traffic, and the truck slowed down some for the intersection. Just before defendant's reaching the intersection the semaphore turned green and he made a left turn into 9th South Street and Moulton continued on south along Second West Street. North of 9th South Street, Second West Street is a four-lane thoroughfare, 88 feet wide, while south of the intersection it is a two-lane road, 44 feet wide. Ninth South, the intersection street, is 80 feet wide. An arc light is at the southwest corner of the intersection, and on both corners of the east side of second west are service stations which were lighted up on the night of the accident. While the semaphore was red for north and south traffic, a Ford car, heading north, waited on the south side of the intersection for the light to change. As the light changed to green the Ford went through the intersection, and behind it was the Kanon boy on a bicycle. Kanon did not have a light on his bicycle as required by law. At a point at or just north of the center of 9th South Street, and substantially straight north of the curb line of 2nd West, south of the intersection the truck struck Kanon hurling the body 18 feet eastward, or within four feet of the curb line of 2nd West, north of the intersection. The bicycle was found 35 feet southeast of the point of impact, and the truck stopped without locking wheels or leaving any track 157 feet east of the point of impact. Kanon suffered injuries from which he died within a few minutes.

That is all the evidence and none of it is in dispute. Is it sufficient to sustain the verdict? Or, in other words, is there evidence to sustain a finding of criminal negligence on the part of the defendant? As we put the test in the case ofState v. Lingman, 97 Utah 180, 91 P.2d 457, 466: Does 1, 2 the evidence show that defendant was driving "recklessly or with marked disregard for the safety of others? This question must be answered in the negative. The most that can be said is that defendant may have been negligent, but mere negligence is not sufficient to authorize a verdict of manslaughter. In the Lingman case, supra, this court said by Mr. Justice Wolfe:

"Where is the line at which the infraction becomes more than civil negligence, that is, criminal negligence? It is not possible to draw it mathematically. The accordion words like ``mere negligence' and ``gross negligence' or ``wanton negligence' suggest comparisons only and give no absolute rule for guidance. We think the ``unlawful act,' that is, the infraction, must be done in such a manner as to more than constitute a mere thoughtless omission or slight deviation from the norm of prudent conduct. It must be reckless or in marked disregard for the safety of others. When it does that, it passes the stage of mere malum prohibitum and approaches the unsocial aspects of malum in se. * * * Criminal negligence therefore sufficient to satisfy arm (a) of the manslaughter definition means more than mere thoughtlessness or slight carelessness. It means reckless conduct or conduct evincing a marked disregard for the safety of others."

And in State v. Gutheil, 98 Utah 205, 98 P.2d 943,944, speaking through Mr. Justice Pratt, this court 3 said:

"What was it that Gutheil did or did not do that shows he acted recklessly and in marked disregard of the rights of others or which shows that he drove in a manner dangerous to the lives of others? The record is silent upon this question of fact. A death resulted from the collosion; but from that fact alone we do not presume that any party was at fault. A criminal case requires proof of each element of the crime by evidence that convinces one beyond all reasonable doubt of the existence of each such element. Criminal negligence evidenced by a dereliction of some kind conforming to at least one of the definitions we have set out, is a necessary element of the crime charged here. We are unable to point to evidence of that dereliction and most certainly the jury would find itself in the same dilemma. The case should not have been submitted to them."

There is no evidence of driving recklessly or in marked disregard of the safety of others. No claim is made that defendant at any time drove at a speed prohibited by law or ordinance. No claim is made that the speed itself is reckless. The evidence shows defendant was driving along with the other traffic on 2nd West Street; another truck was driving along side of defendant in the other lane, and the state's witness caught up with the trucks and then followed them to 9th South Street. The record is conclusive that the defendant slowed up for the intersection light and then on the green light turned left. The only witness asked about speed at that point was Fowler, who refused to fix it in miles per hour but said it was slow. There can be no finding of criminal negligence upon the question of speed.

The State contends that even if the foregoing be true, Kanon had the right of way, and if defendant did not yield the way to him that constitutes recklessness or marked disregard for the safety of others. There is no evidence as to where the bicycle was when defendant entered the intersection and turned, but we may well conclude that it was within the intersection or very near it. Had it been daylight it might well be argued that defendant saw or should have seen the boy on the bicycle as he entered the intersection. If there had been a light on the bicycle, as required by statute and the city ordinance which was put in evidence, it could be argued that if defendant had been maintaining a reasonable lookout he would have seen the lighted bicycle, and failure to do so might indicate lack of care at least sufficient to indicate negligence, but mere negligence is not enough. There is no evidence as to how light it was, or as to visibility at the scene, or that the boy could have been seen by the exercise of reasonable care. But it is evident that the boy would not be within the headlights of the truck until the instant of the crash, and unless the boy crossed the line of lights from the service station on the southeast corner the effect of those lights would be to obscure rather than show up a dark object just out of the line of light to a person looking toward the lights. Had the bicycle been lighted, a different situation would have been presented. It is evident therefore that the facts do not show recklessness or marked disregard for the safety of others merely because defendant did not see the boy in time to avoid hitting him, unless the law imposes that conclusion because defendant was turning across the line of travel of northbound traffic. We need not consider what the situation would be had it been daylight, or had the bicycle been lighted or had the accident occurred on the pedestrian lane where defendant might be charged with the duty of expecting or anticipating someone's presence. It certainly is not the law that a driver is guilty of manslaughter just because his vehicle is an instrumentality by means of which someone is killed. Defendant was within his lawful rights in turning to the left when the light was green and crossing the line of northbound traffic. The statute expressly gives him that right. Section 57-7-31, R.S.U. 1933, reads as follows:

"The driver of a vehicle within an intersection intending to turn to the left shall yield to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but such driver having so yielded and having given a signal when and as required by law may make such left turn, and other vehicles approaching the intersection from the opposite direction shall yield to the driver making the left turn."

It follows therefore that no criminal liability is imposed upon the defendant because he crossed the line of northbound traffic unless he did so recklessly or in willful or wanton disregard of the rights and safety of others. From what we have said it is clear that there is no evidence of 4 such conduct upon the part of defendant. The trial court erred in not granting the defendant's motion to dismiss made when the State rested, as well as defendant's motion for a directed verdict at the close of all the evidence. It therefore becomes unnecessary to discuss the other errors assigned.

The judgment is reversed and the cause remanded to the District Court with directions to dismiss the action.

MOFFAT, C.J., and McDONOUGH and PRATT JJ., concur.