State v. Hedinger, 1.

• Decision Date: 14 April 1941
• Docket Number: No. 1.,1.
• Citation: 126 N.J.L. 288,19 A.2d 322
• Parties: STATE v. HEDINGER.
• Court: New Jersey Supreme Court

19 A.2d 322

126 N.J.L. 288

STATE

v. HEDINGER.

No. 1.

Supreme Court of New Jersey.

April 14, 1941.

Error to Court of Quarter Sessions, Essex County.

Herman Hedinger was convicted of causing death of pedestrian by driving motor vehicle carelessly and heedlessly in willful or wanton disregard of rights or safety of others, and he brings error.

Affirmed.

Argued October term, 1940, before BROGAN, C. J., and PARKER and PERSKIE, JJ.

Edward R. McGlynn, of Newark (Joseph Weintraub, of Newark, on the brief), for plaintiff in error.

William A. Wachenfeld, Pros, of the Pleas, and C. William Caruso, Sp. Asst. Pros., both of Newark, for defendant in error.

BROGAN, Chief Justice.

Plaintiff in error was convicted of causing the death of Caspar Kurak by driving a motor vehicle "carelessly and heedlessly in willful or wanton disregard of the rights or safety of others," etc. R.S. 2:138-9, N.J. S.A. 2:138-9. The deceased, a pedestrian, was struck by an automobile operated by plaintiff in error on Valley Street in the City of Orange on November 1, 1939, at about two o'clock in the morning. No eyewitness to the accident was produced. Of necessity, the state's evidence was largely circumstantial in character. There had been rain for three or four days preceding the night in question, in fact sleet and rain, but the road, according to the testimony of the defendant himself, was "pretty near dry but not quite. It was a pretty bad night." But apparently there had been a drizzling rain earlier that night, although at the time of the accident there was no occasion for the defendant to use "his windshield wiper" and the visibility, he says, was good, and his automobile lights "were on."

The brief of the plaintiff in error concedes that the evidence produced by the state, especially certain exhibits—pieces of glass from a smashed headlight and portions of the grille, "which matched the damage to the defendant's vehicle * * * was sufficient to justify a finding that the defendant's car struck the deceased."

The deceased, aged 62, was crossing the public road, Valley Street, presumably to reach his home located on said street. He had started from the easterly to the westerly side of the roadway. The defendant was traveling south on Valley Street and testified that nothing collided with his automobile. The body of Mr. Kurak was found in the center of the roadway, badly injured; both legs were broken, the bones being splintered; six ribs on his right side had been fractured; the skull was not fractured but the surface of the brain showed a "generalized hemmorhage of the traumatic type." The deceased had left a tavern on Valley Street, conducted by the witness, John Peeles, at about 1:55 in the morning. The plaintiff in error had been engaged in a shuffleboard match in Orange and had been in the company of his brother-in-law and a relative of the latter. After the match he went to a tavern where he remained until 1:45 A. M. or thereabouts. At this juncture it is only fair to say there was no evidence at all that either the deceased or the plaintiff in error was under the influence of liquor.

The defendant concedes that he went along Valley Street and passed the exact spot where the decedent's body was found. At the time of the unfortunate happening one witness, a young lady who lived at 543 Valley Street and whose family occupied an apartment on the third floor of the house, heard a "crash," to use her own descriptive phrase, although her bedroom was the third room from the front of the building. She had just retired for the night when, hearing this disturbance, she called her mother and the two of them went to the front room of the apartment, looked through the window and saw a black automobile, motionless on the street below, without lights, but with the motor running. The body of the decedent was not visible to the witness at that time but shortly thereafter the car was driven off and it was then that she saw the body of a man lying in the roadway. A little later she saw another automobilist, homeward bound, drive up, stop his car, remove the body to a place of safety and seek help. This is sufficient description of the scene at the time immediately after the happening.

Plaintiff in error says that the trial court fell into error in permitting the jury to consider the question of defendant's flight from the scene "in its charge as to flight and in its refusal to grant the defendant's request to charge as to flight." Under this heading it is first argued that what the court said to the jury concerning flight was error. In this element of his charge the learned trial judge said, in brief, that if from the testimony the jury believed beyond a reasonable doubt that the defendant struck the deceased, and knew that he struck him, and fearing an accusation would be made against him and for the purpose of evading that accusation took refuge in...