People v. Robinson, 150.

• Decision Date: 27 February 1931
• Docket Number: No. 150.,150.
• Citation: 235 N.W. 236,253 Mich. 507
• Parties: PEOPLE v. ROBINSON.
• Court: Michigan Supreme Court

253 Mich. 507

235 N.W. 236

PEOPLE

v.ROBINSON.

No. 150.

Supreme Court of Michigan.

Feb. 27, 1931.

Error to Circuit Court, Allegan County; Fred T. Miles, Judge.

Maurice Robinson was convicted on a charge of negligent homicide arising out of operation of automobile, and he brings error.

Affirmed, and case remanded, with directions.

Argued before the Entire Bench.

WIEST and POTTER, JJ., dissenting in part.

W. J. Barnard, of Paw Paw, for appellant.

Wilber M. Brucker, Atty. Gen., and Harry Pell, Pros. Atty., of Allegan, for the People.

McDONALD, J.

The defendant was convicted on a charge of negligent homicide arising out of the operation of an automobile upon a public highway in such a manner as to cause the death of one John Hanold.

The people's testimony tends to show that on the evening of May 17, 1926, the defendant, in company with John Hanold and another young man, attended a dance near Benton Harbor, Mich., where they remained until 2 o'clock in the morning. While there, they drank some beer. The defendant says he had about three glasses. When the dance was over, they drove to Muskegon. There they loitered about, visiting friends, until 4 o'clock in the afternoon, when they started for home. They drank beer before leaving. On the way home defendant was driving. He got on the wrong side of the road, and collided with a car approaching from the opposite direction. In the collision John Hanold was killed.

The theory of the defense is expressed in the following request to charge:

‘You are instructed that if the respondent, Maurice Robinson, was tired, worn out, and lost consciousness by falling suddenly to sleep and the impact or collision occurred in consequence thereof, then your verdict should be not guilty in this case. You are instructed in view of the previous language that the negligent homicide statute is predicated on negligence, or, in other words, a failure to use care and caution that the ordinary prudent man would use and that where the cause was brought about by the respondent's falling to sleep on account of being worn out and weariness and in consequence thereof suddenly falls asleep, then there can be no negligence within the meaning of the negligent homicide statute, and your verdict should be not guilty. In other words, if the sole proximate cause of the collision in this case was caused by the respondent being worn out; fatigued and losing consciousness by falling asleep, then there is no criminal negligence.’

This request is not a correct statement of the law in regard to the negligence of one falling asleep while driving an automobile. He may not always be chargeable with negligence for what he does while asleep, but the rule is different where he voluntarily puts himself in such a physical condition that he cannot stay awake. The danger of driving an automobile on the highways by one who is not in possession of his faculties is a matter of common knowledge. This defendant knew that he had been going without sleep, that he had been drinking that which would disturb his faculties, and that he was not in a fit condition to drive a car. An ordinarily prudent man would have known it. An ordinarily prudent man would have known that this or some other accident would probably happen while driving in that condition. So, under the circumstances as shown by his own evidence, the defendant was negligent in falling asleep. He was negligent in trying to drive a car when a man of ordinary prudence would have known it was not safe for him to do so. It was negligent for him to drive when he was weary and sleepy. It was his duty to stop driving until he had overcome his weariness and regained control of his faculties. The court did not err in refusing to submit the defendant's theory on the question of negligence. The evidence sustains the jury's finding.

Those assignments of error relating to the admission and rejection of evidence and to the charge of the court do not require discussion. Some of them have merit and might require reversal were it not that the material facts which the jury were called upon to determine are not seriously disputed. The defendant's testimony alone shows that in his...