Opinion
August 10, 1951.
Harry H. Martin, Jacksonville, for appellant.
Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee.
The appellant was tried for manslaughter, convicted and sentenced to the state penitentiary. The sole offense charged was the killing of an occupant of an automobile in a collision with the truck said to have been driven by the appellant in a culpably negligent manner.
We will now relate the circumstances of the unfortunate occurrence as they appeared to the state's witnesses. A light rain was falling making the highway slippery. The truck was traveling north at a speed variously estimated from 45 to 60 miles per hour. The car bearing the unfortunate victim was proceeding slowly south. When the vehicles were about a city block apart, the truck began to swerve or skid and eventually turned crossways directly in the path of the automobile. As the vehicles approached each other, the driver of the car, evidently noticing that the truck was swerving or skidding reduced speed and drove to the berm so that the car was off the road at the time of the impact.
As we said in the beginning, the only charge was driving in a culpably negligent manner, none that the driver of the truck was intoxicated. The state introduced positive evidence that there was no indication of the truck driver's having imbibed intoxicating liquor. We mention this fact because we have held, Young v. State, 142 Fla. 361, 195 So. 569, that even in the absence of a count charging a defendant with causing death by driving an automobile while intoxicated, the state may introduce testimony that a blameworthy driver was under the influence of intoxicating liquor because one in that condition is more inclined to recklessness.
We heartily subscribe to the efforts being made by state officials, and particularly the Highway Patrol, to decrease the number of accidents by instilling in automobile drivers a keener sense of responsibility to observe rules of safety and awareness of the potential danger of traveling in automobiles made ever fleeter on highways continuously improved and made more inviting to speed. Even if two cars approach each other at a moderate rate of speed and something untoward causes one to become unmanageable, the few feet allowed for clearance is too little for maneuverability and disaster frequently results. But it doesn't follow that because there is a fatal accident, regrettable as that may be, someone should pay for it by imprisonment in the penitentiary.
Before one can be thus condemned, it is necessary that the state prove beyond and to the exclusion of every reasonable doubt that the defendant has been guilty of negligence of "`a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there [was on his part] that entire want of care which would raise the presumption of a conscious indifference to consequences, or which [showed] wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which [was] equivalent to an intentional violation of them.'" Cannon v. State, 91 Fla. 214, 107 So. 360, 363. This language has been approved by this court at least three times since: Pitts v. State, 132 Fla. 812, 182 So. 234; Russ v. State, 140 Fla. 217, 191 So. 296; Savage v. State, 152 Fla. 367, 11 So.2d 778.
The defendant testified that there was another car preceding him and that in order to avoid striking it from the rear, he put on the brakes which caused the truck to start skidding. The jury apparently disregarded this testimony and consequently we will ignore it, accepting the state's version that there were no other automobiles in the area except the two involved in the collision and one that was almost out of sight several yards down the road. This then leaves us with a picture of the car going south, with extreme care, and the truck proceeding north at a speed which, as we have already commented, the witnesses for the state gave as 45 to 60 miles an hour. Here it should be said that the route salesman for Standard Brands, Inc., owner of the truck, testified that he had driven this very truck for 16 months, the last time a few days before the appellant started out to deliver it to Jacksonville. The witness swore that he had driven the truck as fast as it would go; that it was equipped with a speedometer and it had an absolute top speed of 50 miles per hour. These statements were not controverted unless we dignify as a contradiction the estimates of two witnesses who noticed it pass them before the accident, and according to whom it was traveling at a speed ranging from 45 to 60 miles an hour.
Obviously, the truck got out of control which could well have happened if it had been traveling at much lesser speed, but that in itself could not be culpable negligence; nor could the speed at which it was traveling on a straight road in a rural district with only two cars in sight, one of them far away, be in itself culpable as we have defined that degree of negligence.
Although conceivably the appellant could have been guilty of some negligence in traveling at that rate of speed on the open road, a point we do not decide, we cannot agree that such negligence as might have been present was of such "gross and flagrant character," or evinced such "reckless disregard of human life," or showed such "entire want of care" as to give rise to a presumption of conscious or deliberate indifference to what might result from it or exhibit "a grossly, careless disregard of the safety and welfare of the public" amounting to an intentional violation of the rights of others.
As deplorable as this mishap was, we cannot agree that the jury was justified in finding beyond any reasonable doubt that the state had established the guilt of the defendant. Having this conviction, we can only reverse the judgment.
Reversed.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.