State v. Wagner

• Decision Date: 26 March 1913
• Citation: 86 A. 147
• Parties: STATE v. WAGNER.
• Court: Rhode Island Supreme Court

86 A. 147

STATE

v. WAGNER.

Supreme Court of Rhode Island.

March 26, 1913.

Exceptions from Superior Court, Providence and Bristol Counties; Darius Baker, Judge.

Herman K. Wagner was convicted of manslaughter, his motion for new trial denied, and he brings exceptions. Exceptions overruled, and case remitted for judgment and sentence.

Herbert A. Rice, Atty. Gen., of Providence (Harry P. Cross, of Providence, of counsel), for the State.

Fitzgerald & Higgins, of Providence, for defendant.

PER CURIAM. After a verdict of guilty upon an indictment charging the defendant with manslaughter in causing the death of one Gilbert Mallette by driving an automobile against and over him, the defendant comes before this court upon a bill of exceptions. The first exception is to the denial by the trial judge of the defendant's motion for a new trial. The grounds of this motion, as urged before the trial court, were that the verdict was against the evidence and the weight thereof, and that new evidence had been discovered since the trial. Other grounds, set up in the motion, relating to alleged misconduct on the part of the jury were not pressed, and are not before this court, no affidavits in support thereof having been filed.

We find no error in the denial of the motion for a new trial. There was ample evidence before the jury from which they could find that it was proved, beyond a reasonable doubt, that the defendant was guilty of criminal negligence in driving the automobile at a reckless rate of speed, without timely warning, between and in such close proximity to two tip carts in use by street sweepers as to endanger the lives of the men in charge thereof, and that the death of Gilbert Mallette was due directly to such criminal negligence on the part of the defendant. Aside from the direct testimony as to speed from which, in connection with the position of the carts when the defendant attempted to pass them, the jury were warranted in finding the defendant guilty, there was undisputed evidence of the injury done to both carts, by the collisions which occurred, whereby two spokes of the right wheel of the first cart were broken, and one of the shafts of the second cart was broken by reason of the impact of the automobile, which slewed or skidded against the second cart, pushing the second cart around so that one of the shafts was driven against a tree and broken, and severely injuring the horse attached thereto, so that the horse died three days later. The said Gilbert Mallette, who was struck by the car as it skidded, was also very severely injured when the car struck him and passed over him; it being found, upon the autopsy after his death, that there was a fracture of the skull, with an inter-cranial hemorrhage and laceration of the brain, several contusions over the body caused by external violence, a fracture of the right clavicle, and injuries to eight or nine of the ribs upon the right side of the body. There was also undisputed evidence that the automobile was greatly injured by the collisions; its toolbox, which was fastened to the footboard by four bolts, was ripped off and left in the street, damaged beyond repair; both rear mudguards were dented and twisted; both footboards were broken; there was a dent in the right-hand door nearly one-fourth the size of the door; the body of the car was so badly damaged that it was shipped away for repair; the crash of the collision was so loud that it was heard by several witnesses at varying distances from a block to several blocks away. From all these facts, which were undisputed, the jury were warranted in finding that the speed at which the automobile was driven at the time of the collisions was grossly excessive and indicated, on the part of the defendant, a reckless and wanton disregard of consequences, involving the safety and life of persons in the lawful occupation of the highway, and directly resulting in the death of Mallette. There was also evidence from which the jury might have found that the defendant could have safely passed the carts to the left of them, in accordance with the statute, instead of attempting to pass to the right of the first cart and between that and the second cart, as he did, whereby the double collision occurred.

The theory urged by defendant's counsel that the first collision occurred by reason of the fact that the driver of the first tip cart turned his horse to the left across the street, thereby causing his right wheel to come in contact with the left footboard of the automobile, whereby the skidding was caused resulting...