The appellant was tried and convicted of the offense of negligent homicide, and his punishment was assessed at a fine of $1000.00.
The record shows that on the 28th day of November, 1934, the appellant, while driving an automobile upon and along public highway No. 21 in Nacogdoches County, passed a school bus which was parked on the right hand side of said highway *Page 376 for the purpose of discharging children who were being returned from school. The testimony also shows that there appeared on the front, back, and sides of said bus in letters from six to eight inches high the words "School Bus." The testimony shows that the highway is practically straight for a distance of about two or three hundred yards each way from the scene of the fatal collision. There is also testimony to the effect that the appellant drove at the rate of speed variously approximated from 25 to 50 miles per hour and at no time checked his speed in approaching or in passing said school bus. The appellant testified that on said date he was driving from Nacogdoches east accompanied by his wife and Annie Marie Ferguson. After having traveled several miles east from Nacogdoches, he observed the school bus parked on the right side of highway 21 headed east in the same direction he was traveling; that he observed the bus when he was about seventy-five or one hundred yards distant from it but he thought it was a yellow moving van; that his eyesight was not very good and he did not notice the words "School Bus" printed on it until he was within fifty yards of it. He noticed some children near the bus and he slowed up immediately after discovering the parked vehicle was a school bus and brought his car to a complete stop. One of the little boys motioned to him to drive on and he saw no passengers being discharged from the bus. After having traveled about 20 yards from where he had stopped and as he passed the left front fender of the bus the little Davis girl suddenly jumped in front of his automobile. He said that his car was traveling about 25 miles per hour when the little girl jumped in front of and was run over by his car; that there was nothing he could have done to avoid the accident; that he stopped his car within about 30 or 40 yards of the scene of the accident and picked the little girl up.
The appellant's only contention is that the court failed to charge on unavoidable accident and refused to submit his special requested charge on that phase of the case. The information alleges that the appellant, while engaged in an unlawful act, to-wit: Passing a school bus which had stopped on the right hand side of the highway and was discharging passengers, etc. The testimony of the appellant shows that he saw the motor bus parked on the right hand side of the highway at a distance of about one hundred yards; that he came to a full stop, then started up and passed the motor bus while it was still discharging passengers, which resulted in striking a little school girl inflicting injuries upon her from the effects *Page 377 of which she died. Other testimony offered by the State is to the same effect. It was alleged in the information that the appellant was guilty of a misdemeanor under Sec. 1, Chapter 215, Acts of Regular Session, 42nd Legislature, 1931, and therefore was guilty of the offense of which he was convicted. Negligence in the performance of an act, whether lawful or unlawful, is the gist of the offense of negligent homicide. When a person in the performance of an unlawful act injures another, he is guilty of negligence per se, that is, as a matter of law. The appellant takes the position that the testimony raises the issue of unavoidable accident and therefore the court erred in declining to instruct the jury on said issue, to which we can not agree. An accident which could have been avoided by a compliance with the law will not be deemed unavoidable. In the instant case, the appellant's act was unlawful in that he drove his automobile by a school bus at the rate of 20 or 25 miles per hour, while it was discharging passengers, an act prohibited by law. This unlawful act was the direct and proximate cause of the injury to the little girl which resulted in her death. Hence, he was not entitled to a charge on unavoidable accident any more than he would have been entitled to a charge on contributory negligence.
Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.