Tubman v. Com., 0134-84

• Decision Date: 07 October 1986
• Docket Number: No. 0134-84,0134-84
• Citation: 3 Va.App. 267,348 S.E.2d 871
• Parties: Gregory S. TUBMAN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 871

348 S.E.2d 871

3 Va.App. 267

Gregory S. TUBMAN v. COMMONWEALTH of Virginia.

Record No. 0134-84.

Court of Appeals of Virginia.

Oct. 7, 1986.

V. James Ventura (Ackerman & Ventura, Fredericksburg, on brief), for appellant.

Eugene Murphy, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: BARROW, MOON and COLE, JJ.

COLE, Judge.

In a bench trial, the appellant, Gregory Scott Tubman, was convicted of involuntary manslaughter arising out of a traffic accident. On appeal, Tubman contends that the evidence was insufficient to support the conviction. We agree and reverse.

On May 19, 1984, at approximately 3:00 p.m., an accident occurred on State Route 3 in Spotsylvania County, just west of Fredericksburg, between a motor vehicle driven by Tubman and a motorcycle operated by the decedent, Gregory A. Durrette.

Both the appellant and the Commonwealth agree that there is no substantial factual dispute in the evidence. Route 3 is a four-lane highway, with two eastbound lanes and two westbound lanes, which are separated by a twenty-five foot median strip. At the scene, to the north of the highway is a High's store with a parking lot; and to the south of Route 3 is the entrance into Kilarney Drive, which leads to a residential area. At the intersection is a crossover through the median strip. It was a dry and sunny day. There were no defects in the roadway or in either vehicle involved in the accident.

According to all of the testimony, Tubman exited the High's store parking lot, driving a 1979 Oldsmobile owned by Rick James Russell, a passenger in the vehicle. He intended to go directly across Route 3, through the crossover, and to enter Kilarney Drive on the opposite side of the highway. Tubman approached Route 3 at a slow rate of speed. The view to his left was unobstructed. Observing no traffic coming from that direction, he did not come to a complete stop at the highway, but proceeded to cross the two westbound lanes. While traversing these two lanes, Tubman looked to his right in the direction of eastbound traffic. He saw a car and a truck at some distance from the intersection. The view to his right was obstructed by shrubbery or a hedge row planted in the median strip. The hedge commenced three or four car lengths from the crossover and extended an unspecified distance before ending. Tubman first saw the car and truck beyond the hedge. As these vehicles passed behind the hedge, he could only see the top of the vehicles.

As Tubman proceeded across the westbound lanes, he decelerated the speed of his vehicle and proceeded into the crossover at the median strip. The evidence placed his speed from seven to fifteen miles per hour, depending upon whether he was slowing down or accelerating his speed. When Tubman was in the median strip, the front car passed the crossover and he then determined that he had ample time to proceed in front of the truck. He accelerated the speed of his vehicle to cross the eastbound lanes. However, he failed to see the motorcycle operated by Durrette in the left lane of the eastbound lanes. Tubman testified that he never saw the motorcycle until immediately before the impact. Durrette, at the last second, pulled to his right to avoid the collision, but struck the motor vehicle on the right side near the rear of the front fender. He died as a result of injuries sustained in the collision.

Pamela Brown was a passenger in the truck travelling east on Route 3. She estimated her vehicle to be about seven car lengths behind the motorcycle, and the speed of the motorcycle to be about forty-five to fifty miles per hour. According to her testimony, she observed Tubman's vehicle at the crossover, saw it hesitate slightly in the median strip, and then pull into the eastbound lane in front of the motorcycle. Tubman admits, and all the evidence affirms, that Tubman did not come to a complete stop before entering either the westbound or eastbound lanes of Route 3. Tubman testified that he had ample time to pass in front of the truck and, because of his mistaken belief that the approaching truck was the only vehicle in the eastbound lanes, he proceeded without coming to a complete stop. He concedes that if he had stopped before entering the eastbound lanes, his view to his right would not have been obstructed by the hedge.

The Supreme Court has concluded that involuntary manslaughter in the operation of a motor vehicle in the Commonwealth "should be predicated solely upon criminal negligence proximately causing death." King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977) It has defined involuntary manslaughter in the operation of a motor vehicle as "the accidental killing which, although unintentional, is the proximate result of negligence so gross, wanton, and culpable as to show a reckless disregard of human life." Id.

Recently, the various degrees of negligence have been defined by the Supreme Court. "The law recognizes three degrees of negligence, (1) ordinary or simple, (2) gross, and (3) willful, wanton, and reckless." Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 212 (1984). Ordinary or simple negligence is failure to use "that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury to another." Id. at 321, 315 S.E.2d at 212-13; Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d 805, 808 (1957) (quoting Montgomery Ward and Co. v. Young, 195 Va. 671, 673, 79 S.E.2d 858, 859 (1954)).

Gross negligence is defined as follows: "[T]hat degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of [another]. It must be such a degree of negligence as would shock fair minded men although something less than willful recklessness." Griffin at 321, 315 S.E.2d at 213 (quoting Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971)); Hayman v. Brizendine, 210 Va. 578, 581, 172 S.E.2d 774, 777 (1970).

"Willful and wanton negligence is acting consciously in disregard of another person's rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another." Griffin, 227 Va. at 321, 315 S.E.2d at 213; Friedman v. Jordan, 166 Va. 65, 68, 184 S.E. 186, 187 (1935). "Willful or wanton negligence involves a greater degree of negligence than gross negligence, particularly in the sense that in the former an actual or constructive consciousness of the danger involved is an essential ingredient of the act or ommission." Griffin, 227 Va. at 321-22 (quoting Boward v. Leftwich, 197 Va. 227, 231, 89 S.E.2d 32, 35 (1955)).

The Supreme Court has upheld involuntary manslaughter convictions in Albert v. Commonwealth, 181 Va. 894, 27 S.E.2d 177 (1943) (defendant was drunk, drove his truck upon a bridge, ran over the decedent in daylight when there was ample room for the truck to pass in safety); Zirkle v. Commonwealth, 189 Va. 862, 55 S.E.2d 24 (1949) (defendant, under the influence of intoxicants, zigzagged or swayed across the center of the road to the wrong side of the road); Richardson v. Commonwealth, 192 Va. 55, 63 S.E.2d 731 (1951) (defendant, driving a tractor-trailer unit, attempted to pass another similar unit, drove onto the far left-hand shoulder of the highway and struck a pedestrian, walking with his back to the defendant); Fadely v. Commonwealth, 208 Va. 198, 156 S.E.2d 773 (1967) (defendant was drinking, rounding curve at excessive speed, lost control and ran off the highway); Beck v. Commonwealth, 216 Va. 1, 216 S.E.2d 8 (1975) (defendant driving under influence of intoxicants, failed to see three men on his left and four on his right, and left the scene of the accident); Delawder v. Commonwealth 214 Va. 55, 196 S.E.2d 913 (1973) (defendant racing at eighty to one hundred miles per hour); Mayo v. Commonwealth, 218 Va. 644, 238 S.E.2d 831 (1977) (defendant, within one city block and starting from a stop, attained a speed of twice the posted limit, and continued to accelerate until the accident).

Convictions of involuntary manslaughter have been reversed by the Supreme Court in the following instances: Jenkins v. Commonwealth, 220 Va. 104, 255 S.E.2d 504 (1979) (defendant driving southbound down the middle of an unmarked road with lights on low beam, saw a pedestrian in northbound lane ahead and applied brakes but hit the victim); King v. Commonwealth, 217 Va. 601, 231 S.E.2d 312 (1977) (inadvertent failure to turn on white headlights, rather than amber running lights in violation of statute); Lewis v. Commonwealth, 211 Va. 684, 179 S.E.2d 506 (1971) (defendant, who ran over a pedestrian at an intersection, failed to keep a proper lookout, but no evidence of speeding, drinking or recklessness).

When Tubman undertook to traverse Route 3, the law imposed certain duties upon him. He had the common law duties to keep a proper lookout and to keep his vehicle...