State v. Arena

• Decision Date: 28 February 1963
• Docket Number: No. 4264,4264
• Citation: 46 Haw. 315,379 P.2d 594
• Parties: , 20 A.L.R.3d 450 STATE of Hawall v. Eugene Roy ARENA.
• Court: Hawaii Supreme Court

Page 594

379 P.2d 594

46 Haw. 315, 20 A.L.R.3d 450

STATE of Hawall v. Eugene Roy ARENA.

No. 4264.

Supreme Court of Hawai'i.

Feb. 28, 1963.

Syllabus by the Court

1. Death caused by ordinary negligence in the operation of an automobile violates the negligent homicide statute. R.L.H.1955, § 291-10.

2. Contributory negligence of the deceased does not absolve a motorist from culpability under R.L.H.1955, § 291-10, for causing the death of another by negligent operation of automobile.

3. In reviewing a conviction to determine whether there was substantial evidence amounting to more than a mere scintilla to sustain a jury's verdict, the evidence must be viewed in the light most favorable to the State and on the bais that the resolution of all conflicts in the evidence rested with the jury and does not rest with the appellate court.

4. Whenever the speed of an automobile is material, evidence of tire or skid marks amde by the automobile is admissible and may be properly considered by a jury without aid of expert testimony.

5. Whether the speed at which a motor vehicle is being operated constitutes negligence depends upon the attending circumstances cumstances and not upon the rate of speed alone.

6. The driver of a motor vehicle entering a public highway from a private driveway is required to yield the right of way only to those lawfully approaching and who are so near that he cannot safely enter it.

7. The driver of a motor vehicle lawfully emerging from a private driveway onto a public highway is entitled to assume that others using the highway will do so lawfully, and he is not required to anticipate that he will encounter any vehicle being operated at an excessive speed.

8. The rule that a person operating an automobile has the right to assume that others using the highway will observe the rules of the road has no application to one who is operating an automobile in a negligent manner.

9. The right of way given by the Traffic Code of the City and County of Honolulu to a driver of a motor vehicle on a public highway over the operator of a vehicle emerging from a private driveway is not absolute and cannot be exercised with impunity under all circumstances. Ordinance 1508, City and County of Honolulu, § II, pp2, 5.

10. A motorist cannot arbitrarily rely upon the right of way gained as a result of excessive speed or by other negligent act or violation of law by him.

11. To entitle appellant to review of alleged error in the giving of an instruction the objections urged at the trial must be set forth in the specification of error. Supreme Court Rules, Rule 3(b)(4).

12. In order to predicate error on the giving of an instruction over the objection that it was misleading, indefinite, incomplete or ambiguous, it is necessary that the objecting party offer a clarifying instruction removing the contended fault.

13. As a matter of common knowledge, the court may take judicial notice that under ordinary circumstances an automobile traveling 35 miles an hour can be stopped well within a distance of 135 feet.

Myer C. Symonds, Honolulu (Bouslog & Symonds, Honolulu, of counsel), for defendant-appellant.

John H. Peters, Pros. Atty., City and County of Honolulu, and Herbert H. Tanigawa, Deputy Pros. Atty., for the State, plaintiff-appellee.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

CASSIDY, Justice.

The defendant (appellant) was convicted, after a jury trial, of negligent homicide committed in violation of R.L.H.1955, § 291-10, ¹ under an indictment charging, in material part, that: 'On or about the 22nd day of December, 1960, in the City and County of Honolulu, State of Hawaii, EUGENE ROY ARENA, while operating a Chevrolet automobile, * * * in the Ewa direction on Kalanianaole Highway, * * * and while in the process of overtaking motor vehicles also traveling in the same direction on said Kalanianaole Highway, did carelessly and negligently, but not wilfully or wantonly, operate said automobile at a speed greater than was reasonable and prudent under the conditions, thereby causing it to strike and collide with a Cadillac automobile, * * * operated by CHARLES HERBERT KARLSTAD, who was emerging in the makai direction from a private driveway at 5492 Kalanianaole Highway * * * thereby causing the said Charles Herbert Karlstad * * * to suffer certain wounds and injuries from which he did die * * *.'

The defendant has appealed the conviction and states that the questions presented for this court are:

'1. Did the Circuit Court err in refusing to grant Defendant's Motion for Judgment of Acquittal (Tr. 189 and 197) and in refusing to give Defendant's Requested Instruction No. 1 with regard to a directed verdict? (Tr. 199.)

'2. Did the Circuit Court err in refusing to give Defendant's Requested Instruction No. 20 (Tr. 220) and in giving Court's Instructions No. 2 and No. 16 relating to the definition of 'a concurring proximate cause' over Defendant's Objection? (Tr. 193, 221.)'

Before considering the question relating to the sufficiency of the evidence, it should be noted that the applicable statute (§ 291-10) covers the death of another resulting from the negligent operation of a vehicle. To sustain a conviction under the statute, only ordinary negligence on the part of the offending operator is required to be proven. People v. Campbell, 237 Mich. 424, 212 N.W. 97, 99; State v. Wojahn, 204 Or. 84, 282 P.2d 675. Further, while contributory negligence of the person killed should be considered in determining whether the accused was culpably negligent, it is not a defense to the charge. People v. Campbell, supra; Territory v. Kaupu, 35 Haw. 396, 400.

The collision resulting in Karlstad's death happened about 5:30 P.M. It occurred approximately in the middle of the roadway directly opposite the Kokohead (easterly) boundary of a private driveway leading from a residence on the mauka (northerly) side of Kalanianaole Highway. The paved portion of the highway at this point is 30 feet wide and is divided into three marked lanes 10 feet in width. Between the boundary line of the adjoining premises and the pavement is a shoulder 15 feet wide.

The defendant was driving a Chevrolet sedan in an Ewa (westerly) direction toward Honolulu. The deceased was driving a Cadillac sedan and was emerging from the private driveway. Defendant's car left skid marks down the middle of the center lane a distance of 135 feet to the point of impact. Testimony and photographs in evidence show that the front left side of the Cadillac was hit by the front of the Chevrolet. The Cadillac was shoved sideways and came to rest in the center lane facing makai (south), with its left front wheel 32 feet and its left rear wheel 22 feet from the point of impact. The Chevrolet came to rest facing in the same direction parallel to and 4 feet from the Cadillac. The Cadillac left two heavy tire marks 1 1/2 feet long on the pavement, the one on the left being 5 feet and the one on the right 6 feet from the edge of the pavement. The speed limit in the area was 35 miles an hour.

The defendant testified that when he came to the three-laned portion of Kalanianaole Highway he passed one line of 3 or 4 cars, pulled into the right lane for a while, and then cut back into the middle lane and proceeded to pass another line of 2 or 3 cars and a truck, and that as he passed the truck and was pulling into the right lane ahead of it the Cadillac pulled out across the highway, and that he tried to swerve to the left and 'jumped' on his brakes, but could not stop in time to avoid the collision. He testified he estimated he was traveling at from 45 to 50 miles an hour as he passed the truck.

The evidence is conflicting on the exact number of vehicles in the last line defendant was passing or had passed but the evidence fully bears out that there were at least 3 or 4 automobiles and a truck in the mauka lane immediately before the collision.

The decedent's widow testified she and her husband were on their way to a reception and were a short distance from home when it was discovered she didn't have her gloves, so, he stopped the car, backed into the driveway, and was attempting to make a left turn after emerging from the driveway, in order to return home, when the collision occurred.

The principal conflict in the evidence was in the difference in the testimony of decedent's widow and that of Robert W. Scott respecting the manner in which the Cadillac entered the highway.

Scott testified that he was traveling in a Kokohead direction away from Honolulu and that the Cadillac did not make a stop before proceeding onto the highway. He said that the sudden emergence of the Cadillac required him to come to 'a rather abrupt stop' and that the cars proceeding in the mauka lane toward Honolulu came to 'a very abrupt stop.' The witness testified that there were not more than 4 cars in back of the truck and that there were 3 or 4 cars in front of it and that the defendant did not make and could not have made an attempt to get back into his right hand lane because 'the cars weren't spaced far enough to get in there.'

Mrs. Karlstad testified that her husband had brought the Cadillac to a 'dead stop' at the edge of the pavement before proceeding into the highway. She said she looked to the right and saw no cars, that her husband proceeded to enter the highway and that they were more than halfway across the highway when they were struck.

There was also conflicting evidence before the jury on whether the deceased may have been under the influence of intoxicating liquor.

Summarized, the grounds stated for the motion for acquittal at the close of the case were: (1) That under the rule that a person using a public highway has the right to presume that others using the highway will do so in a lawful manner the defendant was under no legal duty to anticipate that the deceased would emerge from the private driveway illegally or in violation of the defendant...