People v. Campbell

• Decision Date: 04 February 1927
• Docket Number: No. 126.,126.
• Citation: 237 Mich. 424,212 N.W. 97
• Parties: PEOPLE v. CAMPBELL.
• Court: Michigan Supreme Court

237 Mich. 424

212 N.W. 97

PEOPLE

v.CAMPBELL.

No. 126.

Supreme Court of Michigan.

Feb. 4, 1927.

Exceptions from Circuit Court, Ottawa County; Orien S. Cross, Judge.

Kenneth Campbell was convicted of negligent homicide by the operation of an automobile. On exceptions before sentence. Reversed, and a new trial ordered.

Argued before the Entire Bench.Fred T. Miles, of Holland, Pros. Atty., for the People.

Louis H. Osterhous, of Grand Haven, and Gerrit J. Diekema, of Holland, for respondent.

McDONALD, J.

The defendant was convicted of negligent homicide by the operation of an automobile at an immoderate rate of speed and in a careless, reckless, and negligent manner, contrary to the provisions of Act 98, Public Acts of 1921.

After dark, in the early evening of January 31, 1926, he was driving an automobile from the city of Grand Haven in Ottawa county to the village of Spring Lake. Crossing the bridge over Grand river, his way led around a curve onto trunk line 16. While making this curve he ran down and instantly killed Sidney Braak and his wife, Rosalin Braak, who were walking in the highway. The defendant was alone in his car, and was the only eyewitness to the accident. The night was dark and misty. He testified that he was driving about 20 miles an hour, and that, though he was watching the road, he did not see them until he came upon them, and it was then too late to turn or stop his car and avoid hitting them.

The people claim that he was driving at an immoderate rate of speed under the circumstances, that he was not keeping a proper lookout for pedestrians, and that he did not have his car under such control that he could stop it within the range of his lights.

The first assignment of error which we will discuss raises the question as to the degree of negligence necessary to constitute the offense named in the statute under which the defendant was prosecuted.

On the trial, counsel for the defense claimed that, to establish the crime, the people must prove something more than ordinary negligence, and requested the court to so charge the jury. The request was denied, and the jury was instructed, in substance, that the defendant was guilty if he did not use ordinary care.

In their brief counsel's argument leads to the conclusion that:

‘To prove the statutory offense of negligent homicide by the operation of a vehicle, it is necessary to show gross negligence in the sense of very great negligence, or gross failure to exercise proper care; a failure to exercise even slight care.’

In this state under the common law, one is not criminally responsible for death from negligence unless the negligence is so great that the law can impute a criminal intent. If death ensues from negligence which shows a culpable indifference to the safety of others, the negligence is said to be gross or wanton or willful, and is equivalent to criminal intent, a necessary element of every common-law crime. One whose acts cause death under such circumstances is guilty of involuntary manslaughter or common-law negligent homicide. See People v. Barnes, 182 Mich. 179, 148 N. W. 400.

By the enactment of this statute, the Legislature of 1921 obviously intended to create a lesser offense than involuntary manslaughter or common-law negligent homicide, where the negligent killing was caused by the operation of a vehicle. To do this it eliminated as necessary elements of the lesser offense negligence classed as wanton or willful. Included in these terms is gross negligence. So that, in the enactment of the statute, there was expressly eliminated as elements of the crime all negligence of such character as to evidence a criminal intent; and, as we have before pointed out, wanton or willful or gross negligence was of that character. Therefore this statute was intended to apply only to cases where the negligence is of a lesser degree than gross negligence.

According to the classification of degrees of negligence by courts and text-book writers, all negligence below that called gross is slight negligence and ordinary negligence. Slight negligence is never actionable either in the civil or criminal law and is not so under this statute. Ordinary negligence is based on the fact that one ought to have known the results of his acts; while gross negligence rests on the assumption that he did know but was recklessly or wantonly indifferent to the results. The common law makes one guilty of the latter degree of negligence criminally responsible; and probably, in view of the numerous fatalities caused by the operation of automobiles on our streets and highways, the Legislature was led to enact a statute making one criminally responsible for a lower degree of negligence, for any negligence between slight and gross. Terms and classification of negligence are confusing. But, regardless of that, the basic idea of this statute is that every one who places himself in a situation where his acts may affect the safety of others must use every reasonable precaution to guard against injuring them. If he does not do so, and death ensues, he is guilty of negligent homicide under this statute. It is a harsh statute, but finds justification in the serious results that are liable to follow the negligent operation of automobiles on extensively traveled streets and highways. The court did not err in refusing defendant's request to charge and in instructing the jury that death resulting from ordinary negligence constituted an offense under this statute.

Further, it is urged by defendant's counsel that the doctrine of contributory negligence applies to relieve one of criminal responsibility under this statute. The court refused to instruct the jury in accordance with counsels' view, and in that they say he erred. There is some conflict in the authorities on this question, but we think that the great weight of authority sustains the action of the trial court in holding that contributory negligence of the deceased is not a defense in such cases. Such was the holding of this court in People v. Barnes, supra, wherein the rule announced in State v. Campbell, 82 Conn. 671, 74 A. 927,135 Am. St. Rep. 293,18 Ann. Cas. 236, was quoted with approval, as follows:

‘The rule of law concerning contributory negligence by the injured person, as a defense in civil actions for damages for personal injuries, had no application to this case. The state was required to prove the alleged unlawful act of the accused and its consequences, but not that the deceased exercised due care to avoid the consequences of that unlawful act. The court did not, either by its refusal to charge as thus requested, or by the language used, give the jury to understand, as the defendant claims it did, that the conduct of the deceased was eliminated from the case. The court properly said to the jury that the state must clearly show that the deceased's death was the direct result of the defendant's negligence, but that the injured man's conduct became material only as it bore upon the question of such negligence of the accused, and that if the culpable negligence of the accused was the cause of Mr. Morgan's death, the accused was responsible under the criminal law, whether Mr. Morgan's failure to use due care contributed to his injury or not.’

In the Barnes Case, the defendant was prosecuted for the negligent killing of one Mary Robb by the operation of an automobile. In speaking of how the contributory negligence of the deceased might be considered by the jury, this court said:

‘So we say here that, while the claimed contributory negligence of Mary Robb is no defense in this case, yet it does not follow that her conduct should be eliminated from the case; it should be considered as bearing upon the claimed culpable negligence of the respondent, and the question should all the time be, Was respondent responsible under the law, whether Mary Robb's failure to use due care contributed to her injury or not?’

In the instant case, the court eliminated the question from the case by instructing the jury, as a matter of law, that the deceased were not guilty of contributory negligence. In this we think he erred.

The defendant was driving 6 feet from the curb. The night was dark and misty. He testified that he was keeping a lookout, but that he assumed that no person would be walking out in that part of the highway where he was driving. The deceased were not crossing the highway. They were walking 6 feet from the curb, with their backs to approaching cars. We think it was for the jury to say whether, under all of the circumstances, they were using ordinary care for their own safety in walking 6 feet out from the curb, in a dark and misty atmosphere, on an extensively traveled highway, with their backs to approaching automobiles. Considering the darkness, the misty atmosphere, the slippery condition of the pavement, their position in the highway, the fact that there was a safer place to walk, and their knowledge of the fact that automobiles would be constantly overtaking them from the rear, were the deceased, at the time of the accident, using ordinary care for their own safety? If they were not, that fact would not be a defense, but it would be an important factor in the case, which the defendant would be entitled to have the jury consider.

Pedestrians have equal rights with automobiles in the use of the public highways. Their duties are reciprocal. The driver of an automobile has a right to assume that a pedestrian will use ordinary care for his own safety, and any assumption that he has a right to indulge in may be considered by the jury with the other facts in determining his negligence. Pedestrians in a public highway have a right to assume that the driver of an automobile will use ordinary care for their protection, but they may not rest content on that assumption and take no care for their own safety. Some of my Brethren are of the opinion that the decedents cannot be said to have been guilty of...