Commonwealth v. Horsfall

• Citation: 213 Mass. 232,100 N.E. 362
• Parties: COMMONWEALTH v. HORSFALL.
• Decision Date: 06 January 1913
• Court: United States State Supreme Judicial Court of Massachusetts

213 Mass. 232

100 N.E. 362

COMMONWEALTH v. HORSFALL.

Supreme Judicial Court of Massachusetts, Middlesex.

January 6, 1913

Jan. 6 1913.

SYLLABUS

Indictment in four counts charging defendant with recklessly operating an automobile and with going away after an accident in which a woman was injured, without making himself known. The first count of the indictment charged defendant with recklessly operating an automobile, the second count charged him with operating an automobile while under the influence of intoxicating liquor, the third charged him with going away without stopping and making himself known after injuries to a person, and the fourth charged him with going away without making himself known after injuries to property.

Defendant asked the court to instruct the jury: (1) If defendant had no reason to believe that a woman was standing at the point where this woman was struck, and if, after it was first possible for him under existing conditions to see the woman, he did everything that was possible to avert the accident, then he should not be found guilty. (2) The driver of an automobile is not bound in the operation of his car to anticipate and guard against unusual dangers, the existence of which he has no reasonable ground to anticipate, and he is bound only to use the utmost care after he has become aware of them to prevent an accident. The court refused to give these requests. The defendant was found guilty and excepted.

COUNSEL

John J. Higgins, Dist. Atty., of Boston, for the Commonwealth.

Cavanagh & Hendrick, of Boston, for defendant.

OPINION

RUGG C.J.

This indictment charges in separate counts that the defendant (inter alia), in violation of St. 1909, c. 534, § 22, upon a public way, operated an automobile 'recklessly' and 'knowingly' went 'away without stopping and making himself known after causing injury to any person or property.'

The undisputed facts were that the defendant, while driving a 48 horse power automobile of the touring car type upon a state road, struck an aged woman standing near another stationary automobile, inflicting injuries, from which she died. The stationary automobile upon the side of the way was observed by the defendant some distance before he reached it, and the horns of each were sounded before the accident. There was ample room to pass.

1. The defendant's first two requests for instructions as to reckless operation of the automobile were denied rightly. The crime charged was that the defendant operated an automobile recklessly. Instructions as to the meaning of these words were given, to which no exception was taken. As bearing upon this crime the defendant's conduct after he saw the woman was by no means decisive, for his driving prior to that moment may have been such as to ignore the rights of other travelers, even if he did not see them. Antecedent conduct may be found to be reckless, even though all possible care may be exercised after the specific danger is actually discovered. Indeed, a person might be guilty of reckless driving although no one was upon street. Mayhew v. Sutton, 20 Cox, C. C. 146. Lawrence v. Fitchburg & Leominster Ry. Co., 201 Mass. 489, 492, 87 N.E. 898, has no hearing upon the facts disclosed here.

2. The statement in the charge to the effect that automobiles must be used very much as other vehicles must be used and that the driver's duty is to look out for persons and other vehicles on the highway was not open to exception.

3. The instruction was correct that the care, which the driver of an automobile 'must exercise, is proportionate to that instrumentality or engine which he has in charge.' Speaking with precise technicality, every traveler upon a highway is bound to exercise the care of the ordinarily prudent and cautious person under all circumstances. The degree of vigilance and continuity of alertness necessary to attain that standard vary with the time and place, surroundings and means of transportation. But it would savor too much of refinement to hold that there is any practical inaccuracy in saying that one driving a high-powered automobile must exercise greater care toward others on a state highway than one plodding along a country road with an ox-team. The charge upon this point was full and without error. Keith v. Worcester & Blackstone Valley St. Ry. Co., 196 Mass. 478, 82 N.E. 680, 14 L. R. A. (N. S.) 648, and cases cited; Brown v. Thayer, 212 Mass. 392-396, 99 N.E. 237; Sullivan v. Scripture, 3 Allen, 564.

4. There is nothing in the exception to...