The opinion prepared by Mr. Justice McDONALD does not meet with my approval.
Act No. 98, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 15226 [2-4]), defines a crime of lesser degree than manslaughter and denominates it negligent homicide. That act provides:
"Every person who, by the operation of any vehicle at an immoderate rate of speed or in a careless, reckless *Page 434 or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of the crime of negligent homicide. * * *
"In any prosecution under this act, whether the defendant was driving at an immoderate rate of speed shall be a question of fact for the jury and shall not depend upon the rate of speed fixed by law for operating such vehicle."
This statute is plain, and application of its provisions to defendant's testimony of how the accident happened established his guilt. The statute rests guilt upon ordinary negligence, involves no intent and excludes need of establishing gross, wilful or wanton negligence or acts malum in se. It leaves questions of whether the rate of speed was immoderate or operation of the vehicle careless, reckless or negligent to depend upon the particular circumstances of each case. It is an innovation in the law of homicide, departs from the doctrines of common-law manslaughter and carries its own yardstick for measuring culpability. In some States a similar culpability is fixed and accountability exacted under statutes defining manslaughter in the fourth degree. Decisions relative to such degree of manslaughter are helpful, but decisions relative to voluntary or involuntary manslaughter, as at common law, afford no help, for they involve considerations not at all applicable under the provisions of this statute. In manslaughter the negligence of the operator of an automobile must be something more than ordinary negligence. As stated, this statute provides for an offense of lesser degree than manslaughter, for it admits, in case of acquittal of manslaughter, of a conviction of negligent homicide. The wilful, wanton and culpable negligence involved in manslaughter are all eliminated in a prosecution under this statute, for it plants negligent homicide upon ordinary negligence causing the death of a human being. In manslaughter it has been held that the *Page 435 negligence must be something more in degree than is sufficient to afford a right of action for damages. In negligent homicide the negligence need be no more than that ordinarily involved in an action for damages.
The law seeks to reach a consequence altogether too frequent under careless driving and to fill a gap through which those guilty of killing a human being too often avoided accountability. With the policy of the law we have no concern, but with its due administration we are much concerned.
Defendant drove his automobile upon and killed two persons walking in the highway. Under his own testimony he was guilty of negligent homicide. The accident happened about 7 o'clock in the evening of January 31, 1926. Defendant testified:
"The pavement was damp and wet that night and it was misty and dark, * * * Just before I started to turn this curve my lights were shining directly in front of me. * * * The curve to the right in the road, or anything on there was not visible to me or within the range of my lights until I had turned my car in that direction. Just as I did turn and started around this curve I hit the people pretty near as soon as I saw them. * * * I was driving about five or six feet from the curb. I could not say how quickly I saw them after I started to make the turn beyond the Three Point Garage. It was just when I saw them I hit them, that was all. I do not know whether they had been walking in the road before or only just come onto the road at that point. I haven't any idea of the facts. As I swung around the curve they were suddenly there in front of me and I struck them almost instantly. I did not have any time either to turn or stop, after seeing them. * * * I cannot explain the accident, how it happened, except the lights to the left of me, at the Three Point Garage, and not seeing to the right of me on account of there not being very much spread of the lights, and I turned to the right and they were there. It was dark on the right side while the bright lights of the garage were over on the left side of the *Page 436 road. I was not driving fast. I judge about 20 miles an hour. * * *
"As I went by the garage I could see ahead about 15 feet. I probably could stop my car in 15 feet at the rate at which I was going. When these people were within 15 feet of me I did not see them, I don't believe I did. My lights would show up these people that far, if they were trained on them. They were not trained on them directly, I believe. They were trained straight ahead. I was going to make a curve. It was just previous to making the curve. My lights were shining ahead of me before I made the curve, my lights were not trained on them as I hit them. I could see 15 feet ahead of the car. These people were ahead of my car after I turned. When I made the curve then I saw them. I couldn't say how far ahead of me they were when I saw them. I saw them just as I hit them. * * * At some moment, or second before, I struck these people, I remember I did see them. I couldn't say if they were walking or standing still. I don't know; they were walking towards Spring Lake. I don't believe they saw me at all before I struck them. Before I hit them I don't believe they knew I was there. I did not blow my horn. I was driving with my eyesight blurred. I could see where I was going straight ahead of me but turning to the right I couldn't see where my car was going very well. I did not sound my horn so that I could warn any one that was ahead of me where I couldn't see. Those people were struck by my car without any warning at all. I do not know at what point I was when I struck them. Whether it was in front of the Three Point Garage or not, I do not know. * * * Neither one turned their face towards me when I hit them. * * * I was turning to the right when I hit them, making the curve. As I made the curve that night I did not blow my horn and gave no warning of my approach at all. I could not see very well. It was misty. * * * The spot light was not burning. I don't believe it was in good condition. * * * My judgment is I was going about 20 miles an hour. I think that is the same as I had been driving all the time since I left home. I slowed down a little bit on account of *Page 437 the glare of the lights. I don't remember whether the brakes held or not."
Under defendant's testimony there was no issue of contributory negligence on the part of the pedestrians, and it would have been a mockery of the rights of the people and the due course of justice to have injected such an issue. The only asserted negligence on the part of the persons killed was their walking in the highway with the traffic. Negligence on the part of the persons killed, if any, was no defense. Contributory negligence has no place in the law of crimes. State v. Gray,180 N.C. 697 (104 S.E. 647); State v. Miller (Or.),243 P. 72; State v. Hanahan, 111 S.C. 58 (96 S.E. 667); Bowen v. State, 100 Ark. 232 (140 S.W. 28); Lauterbach v. State,132 Tenn. 603 (179 S.W. 130); State v. Weisengoff, 85 W. Va. 271 (101 S.E. 450); State v. Elliott,94 N.J. Law, 76 (110 A. 135); Thornton v. State (Ala.App.), 108 So. 80.
The rule is well settled that contributory negligence on the part of the person killed is no defense. However, defendant's conduct complained of must be viewed in the light of all its attendant circumstances in order to determine whether his act was the cause of the killing, but for no other purpose. Of course, there must be a causal connection established between the negligence of defendant and the killing, but when this is made to appear the issue admits of no consideration of concurrent negligence beyond the purpose we have stated.
In Schultz v. State, 89 Neb. 34 (130 N.W. 972, 33 L.R.A. [N. S.] 403), a manslaughter case, it was said of contributory negligence:
"The State was required to prove the alleged unlawful act of the accused and its consequences, but not that the deceased exercised due care to avoid the consequences of the unlawful act. The authorities are not in conflict as to this question. Uniformly the *Page 438 courts have said a man will not be excused for killing another, even though his victim was negligent. While contributory negligence is a complete defense to an action for private injury resulting from homicide, it is no defense to a prosecution for a public wrong. 21 Am. Eng. Enc. Law (2d Ed.), 195. We think the refusal of this instruction (contributory negligence) was clearly right for the further reason that the evidence disclosed no theory upon which such an instruction could be predicated."
In Maxon v. State, 177 Wis. 379 (187 N.W. 753, 21 A.L.R. 1484), the charge was manslaughter. In the opinion it was said:
"It is further urged on defendant's behalf that the evidence in this case warrants or requires a determination to the effect that the deceased was himself guilty of negligence in his management of the motorcycle to such an extent that he should be held to have proximately contributed to the collision, and that such contributing negligence by him may be successfully interposed as a bar to this prosecution, as much so as it might or could be in a civil action against him for the resultant damages.
"In a criminal prosecution such as this by the State, in which a defendant is charged with the taking of a human life, the fact that deceased may have in a measure, by his own carelessness, contributed to the unfortunate result cannot be recognized as a defense. The reason is plain, owing to the substantial difference between a criminal action prosecuted on behalf of the State and a civil action instituted to recover the damages resulting from the same accident. While no doubt the entire circumstances surrounding the killing are proper for the consideration of the jury in determining whether or not the defendant was negligent, yet his criminal negligence, if it exists, cannot be wiped out by the fact that the deceased was also negligent."
Negligent homicide, within the meaning of this statute, involves no element of gross or wilful negligence, and the killing could not in any event be adjudged a mere misadventure, if occasioned by the *Page 439 careless, reckless, or negligent operation of the automobile by the accused.
The statute (1 Comp. Laws 1915, § 4818) provides:
"Upon approaching a person walking in the roadway of a public highway, * * * a person operating a motor vehicle shall slow down to a speed not exceeding ten miles an hour and give reasonable warning of his approach and use every reasonable precaution to insure the safety of such person." * * *
This statute fully recognizes the right of persons to walk in the roadway of a public highway, and its mandate of care to be exercised by operators of motor vehicles is to safeguard pedestrians. Defendant did not slow down and gave no warning of his approach because he did not discover the pedestrians in time to do so. He did not see the pedestrians until just as he struck them because he had no view of the roadway. This will be discussed later.
The statute (Comp. Laws Supp. 1922, § 4817) provides:
"No person shall operate a motor vehicle upon a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person." * * *
This statute speaks no uncertain language. State v.Schaeffer, 96 Ohio St. 215 (117 N.E. 220, L.R.A. 1918B, 945, Ann. Cas. 1918E, 1137). In that case it was said:
" 'Safety first' must not be sacrificed for 'speed first.' * * *
"The day has long been here when the authorities should exercise every power under every law of the State to protect the safety of the public, its life, its limb; and in order to meet every possible situation of danger, some such general, comprehensive and elastic statute as section 12603 is absolutely necessary.
"The careful, conservative driver need have no fear *Page 440 of it, and the reckless, wanton speed-maniac needs to be kept in fear of it."
The Ohio statute mentioned is like ours. Civil accountability is but a slight deterrent; it may be met by insurance. As yet criminal accountability may not be so met. Under the circumstances detailed by defendant the speed of his car was unreasonable and reckless, for he could not see the roadway.
As said in Lauterbach v. State, supra:
"One who disobeys the statutory rule as to speed is acting in defiance of law, and must be held to have anticipated the possibility of any injury caused by his recklessness."
No person may operate a vehicle on a public highway and omit reasonable care on the assumption that there are no pedestrians also using the highway. At night the operator of an automobile must have a light showing the path he is to travel and sufficient to disclose the presence of pedestrians using the same roadway. It is manifest that the lights on defendant's car did not show the roadway because of the curve in the road. He, therefore, came upon the pedestrians with his eyes, as it were, blindfolded. He was aware of the curve in the road, and must be held to have known that, in making the curve, his lights would not show him the roadway. Ordinary prudence required him to slow down to a speed where he could stop if need presented itself, no matter how sudden. Defendant's claim that he was blinded by lights but intensifies his carelessness. Blinded, as he claims, he took the chance of finding the way clear and ran into the pedestrians. He was reckless in so doing.Hammond v. Morrison, 90 N.J. Law, 15 (100 A. 154); Osbun v.De Young, 99 N.J. Law, 284 (122 A. 809). Whether the curve in the road prevented his lamps from lighting the way or the lights of the garage obscured his vision makes no difference. If *Page 441 he could not see where he was going it was imperative that he either stop or slow down to a point where he could stop if need to do so presented itself.
In Hammond v. Morrison, supra, defendant
"attempted to excuse himself upon the ground that just before the collision the street lights which he had passed were reflected into his eyes by the windshield of his car, so that he was unable to see in front of him."
The court said:
"His own story demonstrates his lack of care. No man is entitled to operate an automobile through a public street blindfolded. When his vision is temporarily destroyed in the way which the defendant indicated, it is his duty to stop his car, and so adjust his windshield as to prevent its interfering with his ability to see in front of him. The defendant, instead of doing this, took the chance of finding the way clear, and ran blindly into the trolley car behind which the decedent was standing. Having seen fit to do this, he cannot escape responsibility if his reckless conduct results in injury to a fellow being."
It was defendant's duty to anticipate the use of the roadway by pedestrians and to keep a lookout for them, and not to proceed if he had no view of the roadway. If his view was prevented by glare of lights, or because his lamps, by reason of the curve in the road, did not light the way he proceeded at his peril. An operator of an automobile along a public highway at night is bound to anticipate the presence of pedestrians upon it.
Hatzakorzian v. Rucker-Fuller Desk Co., 197 Cal. 82 (239 P. 709, 41 A.L.R. 1027), was a case for damages, but many of the questions here presented were there decided and we, therefore, quote from the syllabus as given in A.L.R.:
"Under a statute requiring a person driving an automobile on a public highway to drive it in a careful and prudent manner and at a rate of speed not greater *Page 442 than is reasonable and proper, having regard to the traffic and use of the highway, a driver is negligent if, on a dark night, with a dark roadbed, he continues to travel at 20 or 25 miles an hour after his vision is obscured by the glare of the lights on an approaching car, so that he could not see any object in front of him."
(See, also, to the same effect Budnick v. Peterson, 215 Mich. 678; Gleason v. Lowe, 232 Mich. 300; Holsaple v. Supt'sof Poor of Menominee Co., 232 Mich. 603.)
"Pedestrians have a right to travel anywhere upon a public highway, and it is not negligence for them to do so."
(See, also, Gibbard v. Cursan, 225 Mich. 311.)
"A pedestrian on a highway is under no legal duty to look back or watch behind to see whether or not he is in danger of being struck or run down by any vehicle approaching him from the rear."
(See, also, Nordman v. Mechem, 227 Mich. 86.)
"In the absence of evidence to the contrary, a pedestrian killed while walking on a public highway is presumed to have exercised at all times the requisite degree and amount of care for his own safety and preservation."
(See, also, Petersen v. Lundin, 236 Mich. 590.)
"One driving an automobile along a public highway at night is bound to anticipate the presence of pedestrians upon it."
(See, also, Southall v. Smith, 151 La. 967 [92 So. 402, 27 A.L.R. 1194]; 2 R. C. L. p. 1184.)
The common-law rule is that pedestrians have a right to walk anywhere upon a public highway. An exercise of this right is in no sense evidence of negligence. There is no rule of law requiring pedestrians on a public highway to walk with or against vehicular regulations. The law of the road is not strictly applicable as between vehicles and pedestrians, the latter having a right to walk on any part of the road. 29 C. J. p. 650.
In Darus v. West, 179 Wis. 279 (191 N.W. 506), the court stated: *Page 443
"The argument of defendants' counsel is that pedestrians on a country highway must look to the rear at stated intervals of time or space to see if vehicles are coming and to keep out of their way. We are aware of no such rule of law."
In Marton v. Pickrell, 112 Wn. 117 (191 P. 1101, 17 A.L.R. 68), an operator of an automobile claimed a pedestrian was guilty of negligence in walking on the side of the highway facing traffic. The court, however, pointed out that the rule of the road had reference to vehicles only. Pedestrians have an undoubted right to travel in any part of a public highway in the country. Prudence may suggest the advisability of walking on the side facing traffic but no law counts it negligence to walk with the traffic. If a pedestrian walks with the traffic he is in the very position where the operator of an automobile is bound to anticipate his presence.
In Belliveau v. Bozoian, 46 R.I. 83 (125 A. 82), it was stated:
"It is well established that pedestrians have in general, and under reasonable restrictions as to exercise of care by them, a right to travel anywhere upon a public highway, and it is negligence for a driver of a vehicle upon a public highway to recklessly run upon a pedestrian who is standing or walking with his back toward him."
In Schock v. Cooling, 175 Mich. 313, it was said:
"It is well settled by abundant authority that it is negligence for the driver of the conveyance, having ample space to pass a pedestrian on a highway, to so guide his vehicle as to strike the latter in passing."
In the case at bar defendant had ample space to pass the pedestrians. Why did he strike them? Because he did not see them in time to avoid doing so. Why did he not see them? His vision was obscured by lights along the way and his lamps did not light the roadway because of a curve in the road. The *Page 444 emergency with which defendant was confronted, when his lights did disclose the pedestrians, arose out of his recklessness in driving at a speed of 20 miles an hour at a point where he had no view of the roadway.
The distinction between manslaughter and negligent homicide made by this legislation is important. The motor vehicle law establishes a rule of care to be observed and does not confine its mandate to acts wrong in and of themselves; it is regulatory of conduct calculated to save human life and the negligent homicide act exacts accountability for death occasioned by nonobservance of such precautionary provisions.Festina lente, or hasten slowly, a favorite saying of Augustus Caesar, would be a good thing for some operators of automobiles to recall when about to make a turn where lamps do not show the way, or lights on the street blind the vision. Ordinary care and consideration for the rights of others requires that inconsiderate haste be not indulged and that vigilance and care be exercised. Lamps to light the way are not only intended to safeguard the operator in preserving his life and limb but as well to prevent his driving over persons walking in the highway. Pedestrians are not required to surrender the whole road to vehicles. Operators of vehicles are required to recognize the right of pedestrians in the highway and may not drive them into the ditch or brush them aside. Of course, pedestrians are under obligation to bring their use of the highway in reasonable accord with vehicular use.
It is stated in Elliott on Roads and Streets (4th Ed.), § 1086:
"All persons have a right to walk in a public highway as well as to ride or drive upon it; their rights are equal, and both footmen and drivers are required to exercise such reasonable care and prudence as the circumstances demand."
The foremost traveler, whether on foot or in a *Page 445 vehicle, is not bound to give way beyond allowing reasonable room to pass.
If defendant had struck a vehicle at the same spot instead of pedestrians no one would question his culpability. The pedestrians were the foremost travelers and defendant was as reckless in running them down as he would have been had they been in a vehicle.
We have mentioned and quoted from cases involving manslaughter and also actions in tort to show the degree of care required by the law, under the circumstances shown by the testimony of defendant. His testimony and the law established his guilt. The pedestrians killed were, at the time, in the exercise of their rights and were guilty of no negligence. To apply the rules relative to common-law manslaughter would efface the statute. This may not be done. The statute is a valid exercise of the legislative power, and we have nothing to do with the question of whether it is wise legislation or otherwise. Under defendant's testimony there was no error committed by the court sufficient to justify a reversal.
The conviction should be affirmed.
SHARPE, C.J., and STEERE, J., concurred with WIEST, J. *Page 446