Copeland v. State

Citation285 S.W. 565
Decision Date13 July 1926
Docket Number(No. 2.)
PartiesCOPELAND v. STATE.
CourtSupreme Court of Tennessee

E. W. Ross and J. H. Ballew, both of Savannah, for plaintiff in error.

Ferriss C. Bailey, Asst. Atty. Gen., for the State.

COOK, J.

Plaintiff in error was convicted of involuntary manslaughter for causing the death of Robert Holland on the public highway at Saltillo, December 4, 1924, when he was struck and killed by an automobile driven by Copeland.

Through assignments of error it is insisted: (1) That the evidence preponderates against the verdict; and (2) that the trial judge committed prejudicial error in the charge to the jury.

From the record it appears that the little boy and some companions, while on their way from school, were walking close behind, or riding on the coupling pole of, a log wagon moving east toward the river. The log wagon was drawn by four mules driven by Will Fondren. It was loaded with logs, which obstructed view from the front; but, from his position on the saddle mule, Fondren saw Robert Holland as he ran from behind the wagon toward the south side of the road, immediately in front of Copeland's Ford car. Another wagon had just passed the log wagon moving west. It was occupied by three Bingham brothers. McKinley Bingham was driving, with his face to the team. His brothers were looking east, and saw the little boy run from behind Fondren's wagon into the road ahead of the automobile which was moving west and meeting Fondren's wagon. One of the Binghams holloed at the boy, but he did not hear or heed the warning, and the automobile struck and killed him.

Fondren says that Copeland could not have seen the boy until after he ran from behind the log wagon into the road, and that when the boy came to view Copeland's car was about even with the front wheels of his wagon. The Bingham wagon had just passed Fondren's wagon. After the wagons passed each other, Fondren says Copeland recklessly attempted to run between the rear of his wagon and the rear of Bingham's wagon.

Three witnesses for the state testified that according to their opinion Copeland was driving 30 or more miles an hour. Two others testified that from the sound of the engine he was running more than 20 miles an hour. Copeland insisted that he was running from 15 to 17 miles an hour. Fondren says he was running 20 miles an hour when he came up the hill, but slowed down as the car approached the wagons. Earl Bingham testified that Copeland was running 20 miles an hour, and Homer Bingham that he was running 16 or 17 miles an hour. According to the state's proof, the car ran 60 or 70 feet after striking the boy. According to the defense it stopped from 15 to 30 feet after striking him.

Taking into consideration the opportunity of the witnesses nearest the scene of the accident to observe the speed of the automobile, the preponderance of the evidence indicates that Copeland was not running more than 20 miles an hour, the statutory speed limit at the time. It...

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