State v. McIver
| Decision Date | 23 December 1917 |
| Docket Number | 538. |
| Citation | 94 S.E. 682,175 N.C. 761 |
| Parties | STATE v. MCIVER. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Lane, Judge.
Peter McIver was convicted of manslaughter, and he appeals. No error.
Negligence leading to killing to render negligent party guilty of manslaughter must be something more than is required on trial of issue of negligence in civil action, but it is sufficient to be submitted to a jury if likely to produce death or great bodily harm.
The defendant is charged with manslaughter on account of a collision on Phifer street in Asheville between an auto delivery wagon operated by defendant and a bicycle ridden by deceased. The defendant is a negro boy employed by M. V Moore & Co., of Asheville, and was in the performance of his duties with his employer at the time of the accident. The deceased, Percy Norris, was a white boy 11 years old. The collision occurred on June 20, 1917.
Ashland avenue runs south from Patton avenue down a heavy grade to Phifer street and across Phifer for a short distance. It is paved north of Phifer, but south of Phifer is not paved "and sort of runs out there" at Phifer. Phifer street is paved its entire length, and there is a good deal of travel with machines on Phifer street. Both of the streets are paved with bitulithic. From Ashland west on Phifer is a grade of 4 or 5 per cent., and from Phifer north on Ashland is a steep grade, and a bicycle picks up a great deal of momentum going down the hill to Phifer. At the northwest corner of Ashland and Phifer is a building, and "one coming down Phifer cannot see a person coming down Ashland and a person coming down Ashland cannot see another coming down Phifer because of the store." Ashland is 24 feet wide, and Phifer is 24 1/2 feet wide.
Just before the accident the defendant was traveling east on Phifer and was about to cross Ashland, when the deceased came down Ashland and turned into and across Phifer to the south side of Phifer, where the collision occurred. As soon as the deceased came in sight of defendant, he (defendant) and his companion yelled, "Look out!" or "Get out of the way!" The automobile was coming down Phifer near the center of the street, and the left hind wheel skidded near the center of the street. When the deceased came in sight the defendant immediately turned the machine further to the right, and, when the accident occurred, was nearer the right curb--"not more than 18 inches" from the curb. When defendant applied his brakes, the left wheel made a mark for a distance of 87 1/2 feet.
The truck ran over the boy and killed him. The evidence tended to prove that the defendant was driving the motor truck at 30 miles an hour; that after the brakes were applied the truck skidded 50 or 55 feet before it struck the boy, and in all 87 feet before it stopped; and that no gong or other signal was sounded as the truck approached the intersection with Ashland avenue.
It was also in evidence that the deceased turned into Phifer street a short distance in front of the truck, and that, if defendant had turned to the left instead of the right, he could have avoided the deceased. The ordinance of Asheville limited the speed of motor trucks, automobiles, etc., to 7 miles an hour.
A witness for the state testified that the defendant turned to the right and struck the deceased, and that if he had turned to the left he would have missed him. He then said:
"It was a mistake in the judgment of the boy [defendant] in turning to the right instead of to the left."
The court ruled out this part of the testimony, and defendant excepted.
At the conclusion of the evidence the defendant moved for judgment of nonsuit, which was denied, and he excepted.
The defendant requested his honor to charge the jury as follows:
"(1) The court instructs the jury that, if you find that the defendant and the deceased came to or near the intersection of Ashland avenue and Phifer street at about the same time, and traveling at about the same rate of speed, and the accident could have been averted by the defendant turning his automobile to the left instead of to the right, and that such failure on the part of the defendant caused the collision and the death of the deceased, that such failure was a mistake in judgment on the part of the defendant, and is not evidence of any criminal intent on his part. If you find that the collision between the automobile driven by the defendant and the bicycle ridden by deceased was the result of a mistake of judgment on the part of one or both, then the court instructs you that it would be your duty to acquit defendant.
(2) If the jury shall find from the evidence that the cause of the death of the deceased was that the defendant made a mistake of judgment in turning his automobile to the right to avoid a collision with deceased instead of turning his automobile to the left to avoid such collision, and that the collision and death resulted because of such mistake of judgment on the part of defendant, then it would be the duty of the jury to return a verdict of not guilty.
(3) It is the duty of the state to satisfy the jury beyond a reasonable doubt of every element necessary to convict defendant of the charge of manslaughter, and if the jury is not so satisfied beyond a reasonable doubt of the guilt of defendant upon all of the evidence, it will be the duty of the jury to return a verdict of not guilty.
(4) If the jury shall find from all of the evidence that the defendant was operating his automobile at an excessive rate of speed in violation of the law, and that deceased was operating his bicycle at an unlawful rate of speed in violation of the law, and that the death of deceased was caused by the joint acts of the defendant and the deceased, then it will be the duty of the jury to return a verdict of not guilty, unless the jury is satisfied beyond a reasonable doubt that the death of deceased was directly and solely caused by defendant.
(5) If the jury finds from all the evidence that the death of deceased was caused by the unlawful act of either deceased or the defendant, but the jury is unable to decide whether the unlawful act of the defendant or the unlawful act of the deceased was the cause of the death of the deceased, then it will be the duty of the jury to return a verdict of not guilty.
(6) If the jury shall find from the evidence that the deceased in coming down Ashland avenue reached a point near the intersection of said avenue and Phifer street, where he saw the defendant approaching said intersection with his automobile, which said automobile was being operated at a rapid rate of speed, and the deceased, after so seeing said automobile, proceeded on his bicycle to a point in front of said automobile, and as a...
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