Ronning v. State

• Decision Date: 15 October 1924
• Parties: RONNING v. STATE.
• Court: Wisconsin Supreme Court

184 Wis. 651

200 N.W. 394

RONNING

v.STATE.

Supreme Court of Wisconsin.

Oct. 14, 1924.

Dissenting Opinion Oct. 15, 1924.

Error to Circuit Court, Barron County; Hon. W. R. Foley, Judge.

C. O. Ronning was convicted of manslaughter, and he brings error. Reversed, with directions.

Crownhart, J., dissenting.M. S. Hines, of Rice Lake, and Bundy, Beach & Holland, of Eau Claire, for plaintiff in error.

H. L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and C. E. Soderberg, Dist. Atty., of Rice Lake, for the State.

DOERFLER, J.

The plaintiff in error will hereinafter be referred to as the defendant. The information contained two counts: First, that the defendant did on the 28th day of July, 1923, at said county of Barron, feloniously kill and slay one Nels Ronning; and the second count charges the unlawful operation of an automobile upon and along a certain highway at a rate of speed exceeding 30 miles per hour. The cause was submitted to the jury, and a verdict of guilty was returned upon both counts, although the court gave an instruction to the jury to consider the second count only in case they found the defendant not guilty on the first count. The court thereupon adjudged the defendant guilty on the first count, and pronounced sentence.

The statute under which the defendant was prosecuted on the first count, for manslaughter, is section 4363, which reads as follows:

“Every other killing of a human being by the act, procurement or culpable negligence of another, where such killing is not justifiable or excusable, or is not declared in this chapter murder or manslaughter of some other degree, shall be deemed manslaughter in the fourth degree.”

The sole theory of the state upon which the defendant was prosecuted is based upon an alleged violation of the statute which limits the speed of an automobile on highways outside of cities and villages to 30 miles an hour. On the part of the state it is claimed that the evidence clearly establishes a violation of such speed statute, while on the part of the defendant it is strenuously contended that there was no competent evidence submitted to the jury upon which a violation of such speed statute could be based, and that the evidence is nothing more than speculative. We will therefore briefly review the evidence pertaining to the subject of speed.

Defendant's car had been purchased by him new, three months prior to the 28th day of July, 1923, the date of the accident; it had a wheel base of 136 inches; was equipped with Goodrich Diamond Tread Nonskid tires; was 200 inches in length, and weighed about 4,000 pounds. On the day of the accident the defendant was driving this automobile from Rice Lake, Wis., to Cameron, a distance of about 7 miles, and had with him in his machine, as passengers, Nels Ronning, his brother, and one James Carter. The object of such trip was to take these passengers to Cameron to enable them to board a 6:35 a. m. Soo train for Minneapolis, to attend to some business for the defendant. The trip was undertaken at about quarter to 6 in the morning. The parties proceeded along Main street and South Main street, in Rice Lake, and after making several turns, drove onto Highway No. 11, a north and south highway, on their way to Cameron.

William Hoffman, a witness for the state, an employee of the postal department, while proceeding to his place of business, saw the defendant driving along Main street in the city of Rice Lake, and saw him turn at the intersection of Main and Allen streets, to make a detour. Hoffman at that time was about one mile from the place of the accident.He had been the owner of automobiles for 4 1/2 years, and had had considerable experience in driving machines; had also had considerable experience in riding in cars; also had observed the speed indicated from speedometers of cars. He testified that at the time the defendant passed him he was operating his car at the rate of 40 miles per hour. He also testified that the cutout was open, and that the car made considerable noise, which sounded like the propeller of an aeroplane.

Helen Strand, a witness for the state, an employee at a hotel at Rice Lake, observed the car at a distance from the accident somewhat greater than one mile. She was unable to estimate the speed in miles per hour. Her attention was also called to the noise made by the car as it was passing, and on the subject of speed she testified that the car was going “real fast.”

Paul Krippner, a witness for the state, 18 years of age, who lived on a farm located east of Highway 11, and just outside of the city limits, a distance of about three-eighths of a mile from the place of the accident, saw the defendant with his passengers driving past his home, and he testified that the car was running at the rate of about 70 miles per hour. The witness observed the automobile through a window of his house, and the house was located a distance of about 50 feet east of the road. The highway is a gravel highway, and was in good condition. He also testified that he had experience in observing the speed of passing automobiles, and that he had often ridden in cars at various rates of speed, and that he was capable of approximating the speed of a passing automobile. He also testified that he heard the noise of the cutout; that it sounded like the propeller of an aeroplane, and that his attention was first called to the car by such noise; that he saw the car a distance of about 250 feet, both before and after the machine passed his home.

Harold Lehman, 16 years of age, who lived on his father's farm in a house located about six rods west from Highway 11, and a few rods from the place of the accident, saw the automobile shortly before 6 o'clock a. m., and heard the noise of the machine. He saw the car swerve across the road towards the southwest, at an angle of about 45 degrees, and then go into the ditch. He testified that when he saw the car it was going fast, but that he could not estimate the speed; that the road at the place of the accident was about 28 or 30 feet in width; that there had been no rain the night before; and that the road was not wet or slippery.

Dorothy Lehman, a sister of Harold, saw the car dash by a distance of about three or four rods, from the window of her home, and she testified that the car was going “very fast,” but that she did not see it for a sufficient distance to enable her to judge the speed.

Paul Lehman, the father of Harold and Dorothy, testified that he had made actual measurements upon the highway, and that the distance between the place where the car left the east shoulder of the highway to where it tipped in the ditch was 70 feet; that the marks of the car skidding on the highway were still then observable; that the distance from where the car first landed in the ditch to where it stopped sliding on its side was 23 feet; and that where the car stopped sliding the evidence still existed of the soil having been turned up and scraped during the time the car slid.

It is argued by counsel for the state that the evidence thus referred to was competent and credible, and sufficient to warrant a jury in finding that the defendant at and prior to the accident was traveling at a rate of speed in excess of 30 miles an hour. The undisputed evidence shows that immediately after the accident an examination was made of the place of the accident, and of the car, and that it was ascertained that Nels Ronning was found beneath the car, dead, as a result of a fractured skull, and that Carter was found in an unconscious condition from injuries sustained in the accident, from the effect of which he died on the same day. The top of the car was practically torn off, and the fenders on the right-hand side were flattened, the radiator was shoved back onto the engine, the wind shield was broken, and there was a cut in the inner tube of the rear right tire, and the tire was flat.

The defendant, who was the only other witness to the accident, testified that shortly before reaching the place of the...