State v. Lingman

• Decision Date: 05 June 1939
• Docket Number: 6022
• Court: Utah Supreme Court
• Parties: STATE v. LINGMAN

91 P.2d 457

97 Utah 180

STATE v. LINGMAN

No. 6022

Supreme Court of Utah

June 5, 1939

Rehearing denied August 2, 1939. [Copyrighted Material Omitted]

Appeal from District Court, Third District, Salt Lake County; Allen G. Thurman, Judge.

George Lingman was convicted of involuntary manslaughter, and he appeals.

REVERSED WITH INSTRUCTIONS.

LeGrand A. Carlston and Paul E. Reimann, both of Salt Lake City, for appellant.

Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.

WOLFE Justice. MOFFAT, C. J., and McDONOUGH and PRATT, JJ., LARSON, Justice, concurring.

OPINION

WOLFE, Justice.

Appellant was convicted by the district court for Salt Lake County of the crime of involuntary manslaughter based on an automobile collision occurring within Salt Lake City. He appeals from the judgment of conviction and from denial of his motions in arrest of judgment and for a new trial.

The accident occurred about 7 a. m. September 29, 1937, at the intersection of Twenty-first South and Second West Streets, which was a residence district; appellant's car going north on Second West Street collided with the car driven west on Twenty-first South Street by Erma Layton, who died from injuries received in the accident. The Layton car after the collision traversed a distance of approximately forty-six feet over asphalt pavement, gravel, and dirt shoulders, finally stopping in a grassy area on the side of the road. The only eye witnesses were defendant, defendant's mother, who was rendered unconscious by the collision, and the deceased's daughter, who was then nine years old.

Appellants rely chiefly upon three broad grounds of error: (1) The trial court erred in receiving certain sections of the Salt Lake City Ordinances in evidence; (2) It was error to permit the conclusion of an expert in physics as to the speed of defendant's car based on the tire marks, weight of cars, and other facts assumed or testified to; and (3) Some of the instructions given were erroneous and others were wrongfully refused.

It was objected that the ordinances were invalid because contrary to the state law; that they could not be introduced in evidence because not pleaded; and that violation of them could not form the basis of a charge of involuntary manslaughter. R. S. Utah 1933, 57-7-16, as amended by Chap. 48, Laws of Utah 1935, provides, among other things, in substance that driving in excess of twenty-five miles an hour in any residence district is prima facie evidence that the speed is not reasonable or prudent and hence unlawful, whilst the City Ordinance of 1934, Section 1382, provides that driving in excess of twenty-five miles per hour in any district designated as residence "shall be unlawful." R. S. Utah 1933, 57-7-6, denies local authorities the power "to enact or enforce any rule or regulation contrary to the provisions of this chapter * * *." The question on this branch of the case is whether the ordinance is so "contrary."

Under the statute if a person is charged with driving at an unlawful speed because in excess of twenty-five miles in a twenty-five mile zone, evidence of excessive speed is only prima facie evidence of unlawfulness and he may introduce evidence as to the surrounding circumstances on the theory that he could exceed the stated figure and still be "reasonable and prudent, having due regard to the traffic, surface and width of the highway and the hazard at intersections and any other condition then existing." He has the right to overcome the prima facie case. If charged under the ordinance, however, justifying circumstances are immaterial as the ordinance pronounces an unbending fiat. The authorities we have been referred to or have found are to the effect that such a difference between ordinance and statute is fatal to the ordinance where statutes are preeminent in the matter regulated. Eshner v. City of Lakewood, 121 Ohio St. 106, 166 N.E. 904; Ex parte Daniels, 183 Cal. 636, 644, 192 P. 442, 446, 21 A.L.R. 1172; Winters v. Bisaillon, 152 Ore. 578, 54 P.2d 1169; Mendel v. Dorman, 202 Ky. 29, 258 S.W. 936; Baraboo v. Dwyer, 166 Wis. 372, 165 N.W. 297; Schneiderman v. Sesanstein, 121 Ohio St. 80, 167 N.E. 158, 64 A.L.R. 981; Hoigard v. Yellow Cab Company, 320 Ill. 317 150 N.E. 911; 1 Blashfield, Cyclopedia of Automobile Law, Permanent Edition, § 33. See, however, Hood & Wheeler Furniture Co. v. Royal, 200 Ala. 607, 76 So. 965. We hold that under our statute this ordinance is beyond the power of the city to enact and is therefore void. We are strengthened in this decision by a comparison of the section in the 1933 Revised Statutes with the 1935 amendment. The 1933 statute applied "on all public highways, outside of the limits of incorporated cities and towns" and provided that "no person shall drive a vehicle upon a highway at a speed in excess of that indicated below for the particular district or location." Under that statute the ordinance here in question might have been valid because not contrary to the statute. But the 1935 amendment makes the statute applicable in cities and towns and introduces the rule that exceeding the named speed is prima facie evidence of unlawfulness and not unlawfulness per se. The ordinance introduced is, therefore, invalid and should not have been received in evidence. (The provisions of the ordinance enacted in 1935 are not before us and may or may not adopt the rule of Section 57-7-16, as amended in 1935).

Next question: Was Beckstrand an expert who could testify as to speed, deduced from the laws of physics? He was given certain information as to weight of cars, type of highway, positions of the cars, point of impact, and the marks made by the car which was struck as it skidded sideways and diagonally across and off the highway, and was asked his opinion as to the speed of defendant's car at the moment of impact, which he had computed according to a mathematical formula based upon the distance northward or sidewards the impact had driven the struck car. The witness was in charge of the department of mechanical engineering at the University of Utah and had been teaching there since 1902, his work including the laws of impacts. Whether this qualified him as an expert was a question primarily for the court. Mary Jane Stevens Co. v. First National Bldg. Co., 89 Utah 456, 500, 57 P.2d 1099; Coon v. Shields, 88 Utah 76, 39 P.2d 348; Battle Creek Bread Wrapping Mach. Co. v. Paramount Baking Co., 88 Utah 67, 75, 39 P.2d 323; Graham v. Ogden Union Ry. & Depot Co., 79 Utah 1, 6, 6 P.2d 465; Walkenhorst v. Kesler, 92 Utah 312, 332, 67 P.2d 654; Lenehan v. Travers, 288 Mass. 156, 192 N.E. 495; Wigmore, Evidence (2nd Ed.) Section 561. We find no error in the court's ruling that he was an expert in the law of impacts.

It is objected that the witness had conducted no experiments in automobile collisions and was therefore not an expert in this particular type of impacts. But this is to assume that the laws of impact of bodies do not apply to automobiles or apply in a specialized way which can be known only to one who has conducted such experiments. The professor testified that the laws of impact of bodies were applicable to automobiles since they were "bodies." The collapsibility is taken care of in the coefficient of restitution which was taken as zero, i. e., no rebound after impact. Examples of bodies with a high coefficient of restitution are rubber or billiard balls; with no coefficient of restitution,--soft clay balls.

The use of tire marks of a skidding automobile as the basis for expert testimony is well recognized. Monaghan v. Keith Oil Corporation, 281 Mass. 129, 183 N.E. 252; McKinney v. Wintersteen, 122 Neb. 697, 241 N.W. 112; Ronning v. State, 184 Wis. 651, 200 N.W. 394; Saladow v. Keystone Transportation Company, 241 A.D. 161, 271 N.Y.S. 293; Linde v. Emmick, 16 Cal.App.2d 676, 61 P.2d 338; Rentz v. Collins, 51 Ga.App. 782, 181 S.E. 678; 9 Blashfield, Cyclopedia of Automobile Law, Permanent Edition, § 6238; 70 A.L.R. 544, 545. We have found no case, however, which employs such skid marks in precisely the way done here.

Appellant cites authorities where "expert testimony as to the movement of automobiles involved in collisions was considered" and rejected. But in those cases there was an unreliable personal equation for which the experts could not make allowance, such as the skill of the drivers and their reactions in an emergency in addition to the unknown speed of one or both the cars where that was of controlling importance. Fishman v. Silva, 116 Cal.App. 1, 2 P.2d 473; Johnston v. Peairs, 117 Cal.App. 208, 3 P.2d 617. See also 9 Blashfield, Permanent Edition, op. cit., § 6312. But in the instant case those unknowable and unpredictable factors were of no significance under the hypothesis of this witness. The skid marks of the pushed car from the point of impact showed only a direct sideward movement with the car remaining parallel to Twenty-first South Street and no twirling motion of the car, from which it could be inferred that the factors of human reaction and momentum were of no significance.

This witness based his opinion on a formula which included only the purely physical facts of directions of the two cars and their weights, the point of impact, the co-efficient of restitution (the amount of bounce or recoil from the collision), the frictional resistance of the surface over which the struck car was pushed and the distance of the sideward movement in the struck car. All of these elements were, in the hypothetical question, asked the witness. He admitted that the accuracy of his opinion depended upon the accuracy of the assumed facts. Appellants contend, however that facts were omitted which were undisputed and that assumptions were...