Opinion
No. 33423.
October 10, 1938.
1. AUTOMOBILES.
In prosecution of truck driver for manslaughter of motorist, issue of culpable negligence of driver was for jury.
2. AUTOMOBILES.
In prosecution of truck driver for manslaughter of motorist, instructing jury as to relative rights and duties of driver and motorist on highway was proper.
3. NEGLIGENCE.
"Culpable negligence" is that degree of negligence or carelessness which is denominated as gross, and which constitutes such departure from what would be the conduct of ordinarily prudent and careful man under same circumstances as to furnish evidence of indifference to consequences.
APPEAL from the circuit court of Lee county; HON. THOS. H. JOHNSTON, Judge.
J.W.P. Boggan, of Tupelo, for appellant.
All the proof in this case with the exception of the testimony of Edward Orr and a statement of some witnesses with reference to the position of the Ford car shows that the appellant was operating the truck at the time of the collision with good lights at a slow rate of speed on the south side of the center of the highway, and that in no way caused the unfortunate collision.
The state in its definition of culpable negligence set out in its instruction, gave the mildest definition of culpable negligence that it could furnish, it said: "That culpable negligence is that degree of negligence or carelessness which is denominated as gross, and which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent man under the same circumstances as to furnish evidence of indifference to consequences." In the case of Sims v. State, 115 So. 217, this court said: "But culpable negligence, like reasonable doubt, is an undefinable phrase. . . . Culpable negligence must be ascertained from the facts of each case, and no iron-clad statement can be set forth as applicable to all classes of cases." In this case the court quoted, as a general guide to a correct conclusion as to what constitutes culpable negligence, a definition in 1 Words and Phrases (2d Series), page 1174, which reads as follows: "The omission to do something which a reasonable, prudent and honest man would do, or the doing of something which such a man would not do, under the circumstances surrounding the particular case." It is insisted that the last mentioned definition if presented to the jury in this case might have led to quite different results.
It is respectfully submitted that this appellant ought to have had the benefit of the complete definition of culpable negligence, if it was defined at all, because the evidence preponderated in favor of appellant instead of the State and in my humble judgment the peremptory instruction asked for by appellant ought to have been granted.
Shows v. State, 175 Miss. 604, 168 So. 862.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
Certainly the evidence was not so conclusive in favor of the appellant's contention that the court would have been justified in weighing the facts and determining, as a matter of law, that the appellant was not guilty of the crime charged in the indictment on which he was then being tried. We submit that it was peculiarly a case for the jury.
There was evidence to show that the appellant was driving his truck to the left of the center of the road. The jury was entitled to know what the law was with reference to this particular use of the road-way. The instruction No. 3 for the state sets out the law in Section 5574, Code of 1930, which deals with this particular phase of the rules of the road.
Crystal v. State, 147 Miss. 40, 112 So. 687.
This collision occurred in May 1935, and at a time when Section 5569, Code of 1930, was in full force and effect. Instruction No. 4 sets out the law with reference to such rates of speed and it appears to be a correct statement of the law as set out in said section.
Appellant complains of the definition of culpable negligence which the court gave the jury at the request of the state. This definition is the one judicially approved by this court in Shows v. State, 175 Miss. 604, 168 So. 862.
Gregory case, 152 Miss. 133, 118 So. 906.
Clyde Turner was convicted on an indictment charging manslaughter, growing out of a collision between a truck and an automobile. On conviction, he was sentenced to serve a term of five years in the state penitentiary and prosecutes this appeal.
The deceased, Orr, was driving west on a city street in Tupelo with two companions. Appellant, with two others, was proceeding east on the same street. A collision occurred near the west end of a bridge. It is urged that the verdict of the jury is contrary to the evidence. However, we find that there is material conflict in the testimony of the witnesses not only as to the rate of speed; whether the truck had lights; where the two vehicles were being driven with reference to the center of the road; but as to almost every other fact in the case, except the identity of the parties involved and the fact that a collision occurred. The issue of culpable negligence on the part of the appellant under the facts testified to was one peculiarly for the jury.
The action of the trial court in instructing the jury in reference to the so called "Rules of the road" is also assigned as error, it being contended, in effect, that these rules have no application in a criminal case. But no authorities were cited supporting this contention. The jury was entitled to know the relative rights and duties of the driver of the truck and of the driver of the automobile, in order to be able to determine who was at fault when the driver of the automobile was killed in the collision.
The court instructed the jury for the state that "Culpable negligence is that degree of negligence or carelessness which is denominated as gross, and which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent man under the same circumstances as to furnish evidence of indifference to consequences." This definition of culpable negligence is also assigned as error, and the appellant contends that the definition of culpable negligence, as laid down in Sims v. State, 149 Miss. 171, 115 So. 217, should have been used in the instruction for the State. However, we are of the opinion that the instruction was correct under the case of Gregory v. State, 152 Miss. 133, 118 So. 906; Shows v. State, 175 Miss. 604, 168 So. 862.
Affirmed.