Benton v. State
| Decision Date | 02 March 1933 |
| Docket Number | 28349 |
| Citation | 247 N.W. 21,124 Neb. 485 |
| Parties | WILLIAM BENTON v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Scotts Bluff county: EDWARD F CARTER, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. In a prosecution for manslaughter based upon the unlawful operation of a motor vehicle, where the defendant is negligent, contributory negligence of deceased is no defense.
2. One who drives motor vehicle into rear of another car which he knew was in front of him on the highway is grossly negligent, where ordinary care on his part would have avoided a collision.
3. Testimony that while defendant was driving closely behind a car, still another car approached from the opposite direction with glaring headlights, when considered with other testimony of physical facts surrounding the accident, such as skid marks on the highway indicating distance required to stop and the position of the cars in the ditch after the collision, in which defendant hit the rear of the car he was following, is sufficient evidence to sustain a finding that defendant was negligently operating his car upon the highway at the time of the accident in violation of law, at a rate of speed greater than was reasonable or proper, having regard for the use of the road.
4. When one drives an automobile in violation of law pertaining to the operation of such vehicles on the public highway and in so doing, as a result of the violation of law, causes death to another, he is guilty of manslaughter.
5. One driving an automobile while intoxicated is engaged in the commission of an unlawful act, sufficient to support a conviction for manslaughter.
6. Evidence that defendant had been drinking intoxicating liquor prior to accident and was intoxicated immediately thereafter is sufficient to sustain a finding by the jury that he was intoxicated at the time of the accident.
7. Statute providing for licensure of automobile drivers, being a regulation in the interest of public safety, the fact that a driver's license had been revoked by judgment of a court, and he is operating a motor vehicle notwithstanding, is evidence of negligence.
8. Evidence which directly tends to disprove material testimony of witness is admissible.
9. Objection to misconduct of prosecutor in argument to jury must be made at the time and a record must be made then. It is too late to object for first time on the motion for new trial upon a showing by affidavit of defendant's attorney.
Error to District Court, Scottsbluff County; Carter, Judge.
William Benton was convicted of manslaughter based on the negligent driving of an automobile while intoxicated, and he brings error.
Judgment affirmed.
Morrow & Morrow, for plaintiff in error.
C. A. Sorensen, Attorney General, and Homer L. Kyle, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
The plaintiff in error was convicted of manslaughter in that he negligently drove an automobile, while intoxicated, into the rear of a car on the highway, killing Zeigler, a passenger therein. Our general statute applicable is:
"Whoever shall unlawfully kill another without malice * * * while the slayer is in the commission of some unlawful act, shall be deemed guilty of manslaughter." Comp. St. 1929, sec. 28-403. The unlawful acts charged against plaintiff in error are: (a) At time of accident he was operating a motor vehicle upon the public highway, while intoxicated, in contravention of statute, Comp. St. 1929, sec. 39-1106; and (b) he was operating a motor vehicle upon the highway at a rate of speed greater than was reasonable and proper, having due regard for the traffic and use of the road. Comp. St. 1929, sec. 39-1102.
The evidence is sufficient to support a finding by the jury that the defendant was driving his car, at the time of the accident, at a greater speed than was reasonable and proper, having regard for traffic and use of said highway. The defendant and his companion at the time testified that they had been following for some distance about 30 yards behind the car in which the deceased was riding; that they met a car coming in the opposite direction with bright lights, which momentarily blinded them, immediately after which they observed the car so close in front that they were unable to stop and collided with it, resulting in the tragedy. They also testified that the front car had no tail light and stopped on the road without warning. Where a defendant is negligent, the contributory negligence of the driver of the car in which deceased was riding, even if it were imputable to the deceased, is no defense in a criminal prosecution. Thiede v. State, 106 Neb. 48, 182 N.W. 570; Schultz v. State, 89 Neb. 34, 130 N.W. 972; State v. Gray, 180 N.C. 697, 104 S.E. 647; 29 C. J. 1154.
The defendant was driving his car negligently at the time of the accident. He drove his car into the car ahead of him with such force that it was knocked off the road into the ditch. In Roth v. Blomquist, 117 Neb. 444, 220 N.W. 572, we held that, as a general rule, it is negligence for a motorist to drive an automobile so fast on a highway at night that he cannot stop in time to avoid a collision with an object within an area lighted by his lamps. There are certain exceptions to this general rule, or situations to which it does not apply--an unbarricaded, unknown, open, unlighted ditch across a highway which cannot be seen and cannot be anticipated (Tutsch v. Omaha Structural Steel Works, 110 Neb. 585, 194 N.W. 731); a negligently maintained highway which has unknown ditches or ruts which cannot be seen until close (Cromwell v. Fillmore County, 122 Neb. 114, 239 N.W. 735); corner of a platform with a narrow edge extending from a drag line over a streetcar track and not easily observable (Day v. Metropolitan Utilities District, 115 Neb. 711, 214 N.W. 647); and an obstruction in the road similar in color to the highway (Frickel v. Lancaster County, 115 Neb. 506, 213 N.W. 826).
There is evidence in the case at bar that the defendant was temporarily blinded by the glaring lights of a car approaching him from the opposite direction. Does this create a situation within the recognized exception to the rule in this state which exonerates the defendant from negligence? Let us repeat the facts pertinent to this issue. The defendant knew the car in which deceased was riding was about 30 yards in front of him, therefore the fact that the tail light was unlighted was immaterial. The glaring headlights from another car could not deprive him of this knowledge. To drive into a car which he knew was on the road under such conditions was grossly negligent. The car in front and the car approaching from the opposite direction with glaring headlights and his own car created a situation which justified a jury in finding that the defendant was operating his car upon the highway at the time of the accident at a rate of speed greater than is reasonable or proper, having regard for the traffic and use of the road, and was in the commission of an unlawful act. There was also evidence of physical facts after accident, viz., skid marks on the road, and the fact that the car hit by defendant was hurled off the road into the nearby ditch. Such a finding is sufficient to support a conviction for manslaughter. Schultz v. State, 89 Neb. 34, 130 N.W. 972; Crawford v. State, 116 Neb. 125, 216 N.W. 294.
The defendant is also charged with the commission of another unlawful act at the time of...
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