State v. Olsen , 108 Utah 377 ( 1945 )

I cannot agree that "the fact of going to sleep at the wheel of an automobile, without more, at least presents a question for the jury as to whether the driver was negligent" when such rule is applied to a criminal case such as this. Courts have even refused to apply such a rule to a civil case wherein the plaintiff has been required to show more than ordinary negligence. Forsman v. Colton, 136 Cal. App. 97, 28 P.2d 429;Kaplan v. Kaplan, 213 Iowa 646, 239 N.W. 682; Boos v.Sauer, 266 Mich. 230, 253 N.W. 278; Devlin v. Morse,254 Mich. 113, 235 N.W. 812; De Shelter v. Kordt, 43 Ohio App. 236,183 N.E. 85. Under the holding of State v. Lingman,97 Utah 180, 91 P.2d 457, the state is required in a case such as this to prove that the defendant was driving in marked disregard for the safety of others. A mere showing that the driver of an automobile went to sleep at the wheel will not by itself show a marked disregard.

When the driver of an automobile falls asleep at the wheel, courts in civil cases have, in addition to the fact of sleep, paid particular attention to the preceding events to determine whether or not the driver was negligent in continuing to operate the automobile. See Steele v. Lackey, 107 Vt. 192,177 A. 309; Marks v. Marks, 308 Ill. App. 276,31 N.E.2d 399; Carvalho v. Oliveria, 305 Mass. 304, 25 N.E.2d 764;Potz v. Williams, 113 Conn. 278, 155 A. 211; Manser v.Eder, 263 Mich. 107, 248 N.W. 563; Coconower v. Stoddard,96 Ind. App. 287, 182 N.E. 466; Boos v. Sauer, 266 Mich. 230,253 N.W. 278. As noted in Steele v. Lackey, supra [107 Vt. 192,177 A. 310]:

"One cannot be held to be negligent for what he does or fails to do in the operation of an automobile after he has involuntarily fallen asleep any more than he could be so held after he had suffered a stroke of paralysis, or epileptic seizure, or had suddenly been stricken blind, because the failure to exercise the requisite degree of care and prudence presupposes that the person sought to be charged is capable of sense perception and judgment. The question is, Was he negligent in permitting himself to fall asleep, or in operating the car when he knew, or ought to have known, that sleep might come upon him?"

To the same effect see Boos v. Sauer, supra; DiamondState Tel. Co. v. Hunter, 2 Terry 336, 41 Del. 336,21 A.2d 286; Richards v. Parks, 19 Tenn. App. 615, 93 S.W.2d 639.

The focal point of the inquiry then must be whether or not the driver continued to operate the automobile after such prior warning of the likelihood of sleep so that continuing to drive constituted marked disregard of the safety of others. In this regard see Boos v. Sauer, supra [266 Mich. 230,253 N.W. 279], wherein it is stated:

"Gross negligence requires willful or wanton misconduct.Findlay v. Davis, 263 Mich. 179, 248 N.W. 588. To constitute gross negligence in falling asleep while driving there must have been such prior warning of the likelihood of sleep that continuing to drive constitutes reckless disregard of consequences. There must be an appreciation of the danger of falling asleep or circumstances which would cause a reasonably prudent person to appreciate it and proceed in defiance of results."

It has been held in civil cases that the mere fact that the driver of an automobile went to sleep while driving rises a presumption of negligence, which if not rebutted will take the issue of negligence to the jury. The rule is stated in DiamondState Tel. Co. v. Hunter supra [2 Terry 336, 41 Del. 336,21 A.2d 287], as follows:

"There exists a presumption of law, if a person while engaged in the operation of a motor vehicle permits himself to fall asleep, that such conduct on his part constitutes negligence. The reason for the rule creating such a presumption is obvious. However, the rule extends no further than a presumption. It is not conclusive. The burden of proof merely shifts, so to speak, to the defendant to satisfactorily account for his conduct to the Jury, and in the event the Jury accepts the defendant's explanation of his conduct, and it is found to be sufficient, then the presumption is successfully rebutted and is of no further force and effect."

To the same effect see Whiddon v. Malone, 220 Ala. 220,124 So. 516; Potz v. Williams, 113 Conn. 278, 155 A. 211;Rice-Stix Dry Goods Co. v. Self, 20 Tenn. App. 498,101 S.W.2d 132; Brownell v. Freedman, 39 Ariz. 385, 6 P.2d 1115.

This so-called presumption of negligence has a natural relationship to the fact proved — to wit: that the driver of an automobile went to sleep at the wheel. It is a common experience of men that sleepiness does not overtake the driver of an automobile without some prior warning of its approach. Sleep does not necessarily depend upon the length of time the driver has been at the wheel, nor upon the amount of sleep the driver has had in the period immediately prior to the time of the accident, although these matters are important. Circumstances over which the driver has little control may make him sleepy. For example, exhaust fumes may seep into the interior of the car in sufficient quantity to make the driver drowsy. Yet, no matter what the cause of sleepiness, whether from exhaust fumes or complete physical exhaustion, it is not probable that sleep would overtake the driver without him having some prior warning. The jury may take this probability into account. However, I do not believe that it is correct to say that this raises a presumption of criminal negligence. It is but an evidentiary fact to be submitted to the jury along with all other facts and circumstances. If under all the circumstances the evidence discloses that the driver continued to operate the car without regard to premonitory symptoms of sleepiness, then the jury could find that he was driving in marked disregard of the safety of others. But a mere showing that the defendant went to sleep while driving will not by itself overcome the presumption of innocence or prima facie show criminal negligence sufficient to take the case to the jury.

Regarding the evidence that she was asleep, the defendant's testimony shows that she left Kearns air field at 1 o'clock p.m. immediately after lunch. She proceeded to 33d South and Redwood Road, along Redwood Road to North Temple and then east on North Temple to 5th West Street. The accident happened on the viaduct on North Temple just east of 5th West Street. One witness for the state, a ten year old girl, fixed the time of the accident about 3:30 p.m. Another witness for the state, Mr. Peacock, fixed the time at about 1:30 p.m. Defendant was drowsy just as she left Kearns. She rolled down the window of the truck in an attempt to shake off the drowsy feeling. She claims to have been revived and wide awake as she approached 5th West Street stop light. She saw the light turn green and proceeded through the intersection and remembers shifting into third gear. Yet, she fell asleep immediately thereafter and careened off the highway. An officer from Kearns, who was familiar with the type of truck being driven by the defendant, testified that because of the high, constant humming noise made by the transmission of such trucks, it was difficult to stay awake while driving. Defendant admitted that she knew that this type of truck induced sleepiness.

From this evidence the jury could have concluded that the defendant was asleep at the time of the accident; that she had had at least one prior warning that sleepiness was approaching; that under the circumstances, of her just finishing lunch, driving a truck that induced drowsiness, the warm day, etc., she did not successfully shake off the drowsiness; that she was approaching the business district of Salt Lake City where other people could reasonably be expected to be; that she was driving a heavy truck that could cause serious injury and property damage if it careened out of control. The jury could also conclude that in the common experience of men sleepiness does not suddenly approach without any prior warning; that plaintiff reacted normally in this regard for she testified that she was forewarned of sleep. The jury could have refused to believe that she was wide awake when she approached 5th West Street. Whether, under the circumstances, she was guilty of driving in marked disregard for the safety of others in continuing to operate the automobile is probably a jury question.

I therefore concur.