State v. Cope

Citation167 S.E. 456,204 N.C. 28
Decision Date25 January 1933
Docket Number637.
PartiesSTATE v. COPE.
CourtUnited States State Supreme Court of North Carolina

Appeal from Superior Court, Haywood County; Stack, Judge.

Tom Cope was convicted of manslaughter, and he appeals.

Error and a new trial granted.

Unintentional violation of prohibitory statute or ordinance, unaccompanied by recklessness or probable consequences of dangerous nature when tested by rule of reasonable prevision, is not such negligence as imports criminal responsibility.

Criminal prosecution tried upon indictment charging the defendant, and another, with the felonious slaying of one Cecil Ruff.

On Saturday night, August 2, 1930, the deceased, a boy 15 years of age, in company with his mother and two boys of the neighborhood, was on his way to church, walking on highway No. 10, near Saunooke, in Haywood county. He was struck by a Chevrolet automobile owned by the defendant's father, and under the control of the defendant at the time.

The evidence is conflicting as to just how the accident occurred whether the lights were burning, dimmed, or out. The witnesses for the state estimate the speed of the car from 40 to 60 miles an hour, while those for the defendant say it was not running over 40 or 45 miles per hour. The pedestrians and the automobile were all traveling in the same direction.

The following portions of the charge form the basis of several exceptive assignments of error:

"Gentlemen of the jury, if one violates any of the laws that were passed for the protection of the traveling public on the highways, and that violation of the law on his part causes the death of another, he will be guilty of manslaughter at least whether he intended to do so or not.
"Now in this case, the State says the defendant was violating the laws that were passed by the Legislature for the protection of those who use the public highways. Our Legislature has passed a number of provisions for the protection of all of us who use the highways, and makes it a misdemeanor or a crime to violate them. If all people using the highways would obey the law we would have no killings or personal injuries or destruction of property, because the law in its wisdom has required such regulation for our protection that if we will follow it we will not hurt anybody and if others will follow it we will not get hurt.
"Get the idea: If any of these laws, enacted for the protection of those who use the highways, is violated by travelers on the highways, and that violation of the law results in the death of some one, then the one that does that is guilty of manslaughter at least."

Verdict: Guilty of manslaughter.

Judgment: Imprisonment in the state's prison for not less than five nor more than eight years.

Defendant appeals, assigning errors.

Alley & Alley, of Waynesville, for appellant.

D. G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.


Did the trial court correctly observe the difference between actionable and culpable negligence in charging the jury? Preliminary to answering this question, it may be helpful to plot again the line, sometimes shadowy, which separates the two.

1. Actionable negligence in the law of torts is a breach of some duty imposed by law or a want of due care--commensurate care under the circumstances--which proximately results in injury to another. Small v. So. Public Utilities Co., 200 N.C. 719, 158 S.E. 385; Eller v. Dent, 203 N.C. 439, 166 S.E. 330; Hurt v. Western Carolina Power Co., 194 N.C. 696, 140 S.E. 730; Ramsbottom v. Atlantic Coast Line R. R., 138 N.C. 38, 39, 50 S.E. 448; Drum v. Miller, 135 N.C. 204, 47 S.E. 421, 65 L. R. A. 890, 102 Am. St. Rep. 528.

2. The violation of a statute or ordinance, intended and designed to prevent injury to persons or property, whether done intentionally or otherwise, is negligence per se, and renders one civilly liable in damages, if its violation proximately result in injury to another; for, in such case, the statute or ordinance becomes the standard of conduct or the rule of the prudent man. King v. Pope, 202 N.C. 554, 163 S.E. 447; Godfrey v. Queen City Coach Co., 201 N.C. 264, 159 S.E. 412; Taylor v. Stewart, 172 N.C. 203, 90 S.E. 134.

3. Contributory negligence, when properly pleaded and established, defeats a recovery in the law of torts ( Moore v. Chicago Bridge & Iron Works, 183 N.C. 438, 111 S.E. 776), except in certain cases (Cobia v. Atlantic Coast Line R. Co., 188 N.C. 487, 125 S.E. 18); while contributory negligence as such has no place in the law of crimes (State v. Eldridge, 197 N.C. 626, 150 S.E. 125; State v. McIver, 175 N.C. 761, 94 S.E. 682).

4. Culpable negligence in the law of crimes is something more than actionable negligence in the law of torts. State v. Stansell, 203 N.C. 69, 164 S.E. 580; State v. Rountree, 181 N.C. 535, 106 S.E. 669.

5. Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others. State v. Whaley, 191 N.C. 387, 132 S.E. 6; State v. Rountree, supra.

In support of the distinction, here gleaned from the authorities, between actionable negligence in the law of torts and culpable negligence in the law of crimes, it may be noted that "reckless driving" is defined in the Uniform Act relating to the operation of vehicles on the highways (chapter 148, Public Laws 1927, § 3), as follows: "Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving and upon conviction shall be punished as provided in section sixty of this act."

Under this definition, the simple violation of a traffic regulation, which does not involve actual danger to life limb, or...

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