State v. Williams

• Citation: 28 N.W.2d 514,238 Iowa 838
• Decision Date: 29 July 1947
• Docket Number: 46965.
• Parties: STATE v. WILLIAMS.
• Court: United States State Supreme Court of Iowa

28 N.W.2d 514

238 Iowa 838

STATE v. WILLIAMS.

No. 46965.

Supreme Court of Iowa

July 29, 1947

[Copyrighted Material Omitted]

Edward L. O'Connor, of Iowa City, R. S. Milner, of Cedar Rapids and Frederick M. Miller, of Des Moines, for appellant.

John M. Rankin, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen and Wm. W. Crissman, County Atty., and D. M. Elderkin Asst. County Atty., both of Cedar Rapids, for appellee.

HALE, Justice.

The grand jury of Linn county on April 23, 1946, returned an indictment accusing defendant of the crime of manslaughter in violation of section 12919, Code of 1939, section 690.10, Code of 1946. References in the indictment are to the Code of 1939. Hereafter we shall refer to the corresponding sections in the Code of 1946.

It is alleged in the indictment (1) that defendant unlawfully drove his car in violation of section 321.285 relating to driving in a careful and prudent manner, and to speed; (2) that he violated section 321.288 relating to control of car and reduction of speed; (3) that he violated section 321.327 relating to yielding the right of way at crossing; (4) that he violated section 321.329 relating to the exercising of due care as to pedestrians, and sounding the horn, and (5) that he violated section 321.283 relating to reckless driving, and did in each of such violations and particulars drive said automobile in such a manner as to indicate either a wilfull or wanton disregard for the safety of persons, and as the proximate result and consequence of his reckless, wanton and unlawful manner of driving said automobile in such manner did, with said automobile, strike and kill said June LaVelle Davy.

At the close of the evidence the court withdrew from the consideration of the jury that part of the charge relating to yielding the right of way, section 321.327. On trial defendant was convicted of manslaughter.

Motion for new trial, including exceptions to instructions and refusal to instruct overruled, and defendant sentenced. He appeals to this court.

The fatal injury to the decedent, June LaVelle Davy, occurred on First Avenue East in Cedar Rapids, just east of its intersection with 12th street, which runs north and south. On the north side of First Avenue East, between 12th street and 13th street, the next street east, are the campus and buildings of Coe College. On the south side of First Avenue East all the buildings, with the exception of a grocery store and a pharmacy, being residences, the speed limit in this area was 25 miles per hour, which was indicated on signs on First Avenue East at the intersections of 11th street, 12th street, and at 1309 and 1331 First Avenue East. First Avenue East is 60.2 feet wide from curb line to curb line. Twelfth street is 39.8 feet wide. The distance from 13th street west to 12th street is 660 feet, measured on the north side of First Avenue East. There was a traffic light at the intersection of 13th street and First Avenue East. Where 12th street crosses First Avenue East there is a jog, the street south of the avenue being west of that street north of the intersection, the southern part being called 12th street S. E. and the northern part, 12th street N. E., the center line of the latter being approximately 80 feet east of the center line of 12th street S. E. On the south side of First Avenue East, about opposite the sidewalk on the east side of 12th street N. E. there is a grocery store. There was evidence that at the time of the injury there were two lighted street lights on First Avenue East at the 12th street intersection, and one at the 13th street intersection, and another on the south side of First Avenue East between 12th and 13th streets. There was some dispute as to the degree of visibility since it had rained during the day, but there was evidence that, while it had been misty during the day, at the time of the injury the visibility was clear and the streets dry.

Defendant, about 10:20 in the evening of March 15, 1946, was driving his DeSoto coach west on First Avenue East. He was accompanied by his brother-in-law, Sterling Harman, and in the back seat were several girls who were riding from Marion. Between 12th and 13th streets he passed a car driven by one Von Lackum at a speed estimated by a witness in the Von Lackum car at 40 to 50 miles per hour; by other witnesses in that car at 40 miles or above. Other witnesses testified that the speed was not less than 40 miles per hour and some testified that the speed was 40 to 50. The defendant placed the speed at about 30 miles. At this time defendant drove on or near the middle of the street. There was testimony that the car did not change its speed and that no horn was sounded, nor any brakes applied.

While defendant was proceeding westward two young women, Hazeldel Yates and June LaVelle Davy, were crossing First Avenue East from the north toward the Lazio grocery store on the south side of the street. They stopped at the middle of the street, standing side by side at a point which would be on the east sidewalk of 12th street north if extended south, but which at that place was not marked. While so standing they were struck by defendant's car and thrown into the air to a considerable distance. The impact resulted in the death of one girl and serious injury to the other. There were various estimates of the height to which they were thrown, and the distance from the bodies of the girls to the point of collision was about 55 to 61 feet. There is no question that they were struck with tremendous force. After the collision the defendant proceeded down the street and returned in ten or fifteen minutes to the scene of the accident.

I. On appeal defendant assigns four alleged errors. These are (1) the failure to give defendant's requested instruction No. 9; (2) the failure of the court to give defendant's requested instruction No. 11; (3) the failure of the court to define the word 'wanton', and (4) misconduct of prosecutor. Requested instruction No. 9 is is as follows: 'The court instructs the jury that the defendant on the evening of March 15, 1946, at the time and place of the alleged commission of the offense, as a driver of a motor vehicle had the right to assume that all persons using the highway on which he was proceeding would observe the law.'

If this were a civil action we could appreciate the defendant's claim that he was prejudiced by the court's refusal to give the requested instruction, but contributory negligence is not a defense in a prosecution of this kind. State v. Thomlinson, 209 Iowa 555, 228 N.W. 80; State v. Graff, 228 Iowa 159, 290 N.W. 97. The jury were told that defendant was charged, among others matters, with the violation of part of section 5023.01, Code of 1939, section 321.285, Code of 1946, by failing to drive at a 'careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, * * *.' The court did not give the second part of the section: '* * * and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead, such driver having the right to assume, however, that all persons using said highway will observe the law'; this last part being the substance of the requested instruction. It was not necessary to instruct on more than that part of the section which the court embodied in its instruction. It was not charged in the indictment that the defendant violated that part of the section referring to the assured clear distance ahead.

The defendant, under the statute, had the right to assume that others were not violating the law, but this right gave him no excuse heedlessly and recklessly to endanger the safety of others, whether violating the law or not. As we have said, it might be urged as a defense in a civil action that the plaintiff was guilty of contributory negligence, but the law was not designed merely for the protection of those innocent of negligence, but of all persons.

The court in its instruction No. 10 informed the jury of the duty of pedestrians crossing a roadway at an unmarked crossing to yield the right of way to vehicles, but further instructed that notwithstanding the driver must exercise due care to avoid collision and shall give warning by sounding the horn. He further correctly instructed that if the proximate cause of the collision and death of June LaVelle Davy was her own negligence and conduct then the defendant must be acquitted, but that on the other hand if she, by her own negligence and conduct, contributed to her own death, that would not relieve the defendant of criminal responsibility if the jury found that her death was naturally and proximately caused by the doing by the defendant of an unlawful act or acts as defined, in such a manner as to show a wanton and reckless disregard of and indifference to the safety of other persons who might be reasonably expected to be injured thereby. This instruction protected the defendant to such extent as he was entitled.

II. Objection is made to the court's refusal to give defendant's requested instruction No. 11. This instruction in substance was a request that the court instruct the jury to take into consideration whether or not the night was foggy or misty, whether or not the presence of pedestrians was to be anticipated or expected at the place where June LaVelle Davy had the opportunity to step aside and thus avoid the collision, whether or not she had voluntarily placed herself in a position of danger which could be seen and appreciated by her, whether or not there were circumstances which diverted the attention of the defendant, the condition of the...