State v. Olsen

• Decision Date: 27 June 1945
• Docket Number: 6802
• Citation: 160 P.2d 427,108 Utah 377
• Court: Utah Supreme Court
• Parties: STATE v. OLSEN

160 P.2d 427

108 Utah 377

STATE v. OLSEN

No. 6802

Supreme Court of Utah

June 27, 1945

Appeal from District Court, Third District, Salt Lake County; A H. Ellett, Judge.

Winnie M. Olsen was convicted of involuntary manslaughter, and she appeals.

Affirmed.

Walter M. Critchlow and Ned Warnock, both of Salt Lake City, for appellant.

Grover A. Giles, Atty. Gen., and W. Stanford Wagstaff Asst. Atty. Gen., for respondent.

Larson Chief Justice. McDonough, Justice (concurring). Turner, J. concurs in the result. Wolfe, Justice (concurring in part). Wade, Justice (concurring).

OPINION

Larson, Chief Justice.

Appeal from verdict of involuntary manslaughter and sentence of one year in the county jail, in the District Court of Salt Lake County.

The facts, not disputed, show that defendant was employed as a truck driver at Kearns Army Base. She was ordered to the Union Pacific Station to pick up some soldiers in her truck. Just after leaving Kearns, she became drowsy. She opened the windows for a breeze to combat this feeling, and drove on. She stopped for the semaphore light at 5th West and North Temple Streets, just west of the viaduct where the accident occurred. With the green light, she started to go up the viaduct, and had just shifted into third gear when she fell asleep. Defendant has no recollection of the facts of the accident, but it is not disputed that the truck went up over the right or south curb onto the sidewalk, and went along the sidewalk for some distance, striking and killing a child playing on the sidewalk. The jury returned a verdict of guilty of involuntary manslaughter, and sentence of one year in the county jail was imposed. Defendant appeals.

We shall not enter into an extended discussion of defendant's first argument for reversal. This deals with a map containing testimonial statements, drawn by one of the witnesses, and identified by him on the trial. Because all of the facts of the accident in question were admitted by defendant, we can see no prejudicial error in the use of this map, and for this reason shall not enter into an academic discussion of the rules governing the use of maps, and other testimonial documents.

Defendant's second argument is that denial of the motion to dismiss and to direct a verdict of not guilty was error. The basis of this argument is that the state failed to prove the offense charged in that there is no showing of criminal negligence sufficient to go to the jury. This is purely a question of law. In People v. Robinson, 253 Mich. 507, 235 N.W. 236, 237, the court said:

"The danger of driving an automobile on the highways by one who is not in possession of his faculties is a matter of common knowledge. This defendant knew that he had been going without sleep, that he had been drinking that which would disturb his faculties, and that he was not in a fit condition to drive a car. An ordinarily prudent man would have known it. An ordinarily prudent man would have known that this or some other accident would probably happen while driving in that condition. So, under the circumstances as shown by his own evidence, the defendant was negligent in falling asleep. He was negligent in trying to drive a car when a man of ordinary prudence would have known it was not safe for him to do so. It was negligent for him to drive when he was weary and sleepy. It was his duty to stop driving until he had overcome his weariness and regained control of his faculties. * * *"

This case is followed and cited in Devlin v. Morse, 254 Mich. 113, 235 N.W. 812, 813, where the court also makes the observation that "the approach of sleep is indicated by premonitory symptoms." To the same effect is Manser v. Eder, 263 Mich. 107, 248 N.W. 563, 564, wherein the defendant had gone to sleep shortly before the accident, and narrowly missed a collision. After being awakened and told of the incident, defendant insisted he could still drive. The court said:

"Thus forewarned, his insistence that he continue driving, and that plaintiff remain with him, constituted such a reckless disregard for the consequences of an obvious danger and the safety of his passengers as amounted to willful and wanton misconduct."

Perhaps the leading case on this subject is Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 435, 44 A. L. R. 785, wherein the court said:

"In any ordinary case, one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires, without having been negligent. It lies within his own control to keep awake or cease from driving. And so the mere fact of his going to sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie case, and sufficient for a recovery, if no circumstances tending to excuse or justify his conduct are proven. * * * If such circumstances are claimed to have been proven, it then becomes a question of fact whether or not the driver was negligent; and, in determining that issue, all the relevant circumstances are to be considered, including the fact that ordinarily sleep does not come upon one without warning of its approach. 5 Wigmore, Evidence (2d Ed.) § 2491. The trial court was right in leaving the issue to the jury as one of fact, but it might properly have gone farther and called attention to the last-mentioned feature of the case."

And in Whiddon v. Malone, 220 Ala. 220, 124 So. 516, 518, the court merely states:

Without extended discussion, we hold that going to sleep at the wheel while operating a car is evidence of negligence. The dangers of running a car while asleep are so obvious as to need no comment. It is the duty of the driver to keep awake or cease to drive. A failure so to do is prima facie evidence of negligence. The burden passes to the defendant to show some unusual cause of his falling asleep which reasonable diligence could not foresee nor forestall."

See also Helton v. Alabama Midland R. Co., 97 Ala. 275, 12 So. 276; Criez v. Sunset Motor Co., 123 Wash. 604, 213 P. 7, 32 A. L. R. 627; Bailin v. Phoenix, 102 Cal.App. 117, 282 P. 421; Steele v. Lackey, 107 Vt. 192, 177 A. 309, 310, wherein the court reviews and summarizes most of the decided cases on this subject, and quoting from Blood v. Adams, 269 Mass. 480, 169 N.E. 412, 413, says:

"Voluntarily to drive an automobile on a public street at any time of day or night with eyes closed, or to yield to sleep while operating such kind of dangerous machine as is an automobile on a public highway, is to be guilty of a degree of negligence exceeding lack of ordinary care, and is a manifestation of recklessness which may be found by judge or jury to be gross negligence within any reasonable definition of that phrase."

That suit was brought under the provisions of a guest statute so that gross negligence had to be proved for a recovery. The court held that this was a question for the jury. But to the effect that the court did not err in holding defendant not guilty of gross negligence as a matter of law, see Boos v. Sauer, 266 Mich. 230, 253 N.W. 278; Gilliland v. Harris, 25 Ala. App. 549, 150 So. 184.

The burden of the foregoing authorities is overwhelmingly that the fact of going to sleep at the wheel of an automobile, without more, at least presents a question for the jury as to whether the driver was negligent. We think this a sound and salutary rule, for while one cannot be liable for what he does during the unconsciousness of sleep, he is responsible for allowing himself to go to sleep -- to get into a condition where the accident could happen without his being aware of it, or able to avoid it. Bushnell v. Bushnell, supra. We think the jury could find such conduct to be negligence manifesting a marked disregard for the safety of others on the highway. Were this not the rule, the negligent driver of an automobile would better sleep while driving and avoid criminal and civil responsibility than remain awake and be responsible for his acts of negligence. The evidence presented an issue for the jury, and is sufficient to sustain their verdict.

Judgment affirmed.

CONCUR BY: McDONOUGH; WOLFE (In Part); WADE

McDONOUGH Justice (concurring).

The ultimate question presented by this appeal is: under the evidence would a jury of reasonable men be justified in finding that defendant in driving the truck acted in marked disregard of the safety of others. If so, there was, of course, a question of fact to be presented to the jury.

I am of the opinion, though not without some doubt, that there was. There was before the jury not merely the driver's testimony that she felt drowsy several miles back from the scene of the accident, but the testimony of the route taken to arrive at such scene and her actions just prior to the fatal incident. From the fact that the driver observed the stop light, responded to its warning, shifted gears, proceeded across the intersection and, then, almost immediately fell asleep, the jury might conclude that insistent premonitions of sleep must have theretofore assailed her. For the very act of shifting gears, the jury might find would, unless there was present immediately theretofore acute symptoms of drowsiness, tend to alert the operator.

But this fact coupled with the other evidence presented a situation which but permitted the jury therefrom and from their own experience and knowledge to infer that the driver knew of her condition and continued to drive despite such knowledge. They, however, do not create any presumption which would compel the jury to so find absent explanation to the contrary. Sec. 5, Wigmore Ev., 2d Ed., Sec. 2491. If the jury might reasonably find that the driver was aware of the approach of sleep and continued to drive despite such awareness, then,...