State v. Freeman , 93 Utah 125 ( 1937 )

I concur in the answer to propositions 1 and 4. As to number 1, I agree that the record showed a commitment by a magistrate having authority and that this record should have sooner been impunged by extrinsic evidence to upset its imported verity. I think, too, that the "binding over" is what gives the district court the right to proceed. If from the record it is evident that he was bound over on the charge in regard to which he is informed against, the fact that there may have been an irregularity in the manner in which such binding over is shown is not fatal. There must be evidence in the record that he was bound over on the offense he is charged with, and, if the offense has not changed by an amended complaint, the fact that the recital respecting the binding over refers to the same offense contained in a complaint which has not been altered in substance by the amendment sufficiently apprises the district attorney and the district court of the offense charged and in respect to which he had a preliminary hearing or which hearing he waived.

As to the second proposition, that an ordinance not relied on as the basis of negligence and not mentioned in the complaint may be introduced in evidence as "bearing upon the conduct of the driver," I think it is subject to qualifications. If the negligence charged is based on the violation of an ordinance or statute, it makes no difference whether as an actual fact there was negligence. The violation of the ordinance is negligence per se or prima facie, depending upon holding of the jurisdiction. But I ask myself what materiality or ordinance prohibiting driving above a certain speed has in a case where the negligence charged is common-law negligence and depends actually upon whether in fact there was negligence. Certainly, driving more than 25 miles per hour, where the ordinance prescribed that as a limit, may or may not actually in fact be negligence. In law it is negligence, but to rely on the legally made negligence, it should be charged as such. The cases say it is "competent evidence in support of the charge of negligence," or that it was "admissible as bearing on the question of general negligence," or like expressions. But I have seen no case which seems to have analyzed such general statements of competency. They seem to be dogmatically made. If some opinion of a traffic or safety expert to the effect that more than 25 miles was generally an unsafe speed to drive within certain sections of the city were offered, it would not be accepted as evidence. An ordinance fixing a maximum speed limit does not purport to say that a greater speed would in all cases be negligence in fact, but only that as a general protective measure greater speeds are prohibited. Thus, all that is involved by the introduction of such an ordinance as evidence of actual negligence is that in the opinion of the governing body of the city more than 25 miles per hour was an unsafe speed — nay, perhaps it does not rise to the level of an implied opinion. It may be that the commission which passes the ordinance simply set that speed as a maximum as a general protective measure and because there were enough occasions when it would be dangerous to exceed it so as to set it as a maximum. But if it is an opinion, it could not be introduced in this way, and an opinion that 25 miles within the city was a limit beyond which no one could safely drive would hardly be admissible in an action based on actual negligence. The question would be what was a proper speed consistent with due care at the place and time of the accident. It might be only 5 miles. I have great difficulty seeing how such an ordinance bears or supports an allegation of negligence in fact. But there are a number of cases supporting the rule that it is admissible and some against it. Note, 16 Ann. Cas. 1064, which seems to show a weight of authority according to the number of jurisdictions cited in favor of the rule. But in Jaquith v.Worden, 73 Wn. 349, 132 P. 33, 36, 48 L.R.A. (N.S.) 827, decided in 1913, later than the above-mentioned note, it is stated that the weight of authority is against the rule, although this case decided in favor of the rule. This case said the ordinance "may be admitted in evidence like any other fact or circumstance material to the subject-matter of the action." But I have difficulty seeing how a maximum speed limit set by law is itself a material circumstance to the question of whether the speed at which the driver was going was under all the circumstances actual negligence. I can see how in proof of general reckless driving or in support of some broad allegation of negligence, it might be shown that a person did some act which was prohibited without alleging the violation of the ordinance as a basis for its introduction, but in such case, the act prohibited would itself be one of the facts of actual negligence. Thus, if some one were charged with negligently driving through an intersection and it was shown that he drove through a red light in violation of law, that act would itself be part of the set of circumstances constituting the general reckless driving, but speed above or below 25 miles per hour might or might not be part of such set of circumstances. If so, it should be proved as an actual fact negligent under the circumstances, not by introducing an ordinance setting that speed as a legal maximum. The fact that it is a legal maximum is not in itself proof of actual negligence. If some city commission should see fit to make 5 miles per hour the maximum, I can hardly think that the introduction of the ordinance as bearing on the conduct of the driver would be admissible if it were alleged he had been going 10 miles per hour. After all, the alleged conduct of the driver is or is not a fact regardless of the ordinance.

It may be that the State is correct in contending that the ordinance was sufficiently pleaded when it was set out in the information "that the speed limit on said highway south of 9th South is twenty-five miles per hour." The ordinance does not need to be set out in words, and there is authority that where a violation is relied on as the negligence, a reference to such ordinance in substance, without reference to title, section, number, or date of passage, is sufficient. Yahnke v. Lange,168 Wis. 512, 170 N.W. 722; Van Goosen v. Barlumn, 214 Mich. 595,183 N.W. 8; Louisiana Ry. Nav. Co. of Texas v.Humphreys (Tex.Civ.App.) 285 S.W. 869. In these cases, the acts alleged to constitute negligence had coupled with them the allegation, "in violation of ordinance of a city." This was deemed sufficient in a complaint in a civil action. An allegation "that the speed limit on said highway is 25 miles per hour" would seem to apprise the defendant sufficiently that there was an ordinance so limiting the speed. It would either have to be a state law or an ordinance, and if the former, it would not in any case even have to be referred to in substance.

In view of the fact that my associates have concurred fully in the opinion of Mr. Justice Larson, I deem it profitless to do more than point out my doubts in the above matters without further explanation.

I think the requested instruction to disregard the evidence of Gillet was equivalent to a motion to strike such evidence. If a motion to strike had been made and granted, I think the court should have instructed the jury that the evidence was out of the case and to ignore it. The court stated that it would permit the evidence to go in subject to be stricken if not connected up. It may have had no duty to keep in mind its ruling admitting the evidence conditionally or to keep track of the evidence in sufficient detail to inform itself whether it had been connected up, but when counsel refreshed its recollection by requesting the instruction that the jury ignore such evidence, the court should have of its own motion stricken it. After it had admitted the evidence conditionally and was apprised that the condition had not been met, the court should have acted to prevent incompetent evidence from being considered. I think this failure to strike such evidence and instruct the jury to ignore it was in this case reversible error, for it appears that the jury might have been and probably was materially influenced by this incompetent evidence, and the defendant was prejudiced thereby.