Opinion
Hearing Granted April 1, 1942.
Appeal from Superior Court, San Diego County; Gordon Thompson, Judge.
Maude Mae Young was convicted of negligent homicide, and she appeals.
Affirmed.
COUNSEL
Newton F. Rozzelle, Jr., of San Diego, for appellant.
Earl Warren, Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for respondent.
OPINION
SCHOTTKY, Justice, pro tem.
By an information filed by the District Attorney of San Diego County appellant was charged with negligent homicide under the provisions of Vehicle Code, section 500, St.1935, p. 173, as amended by the statutes of 1941, St.1941, p. 1414. Appellant pleaded not guilty, and after trial before the court without a jury was found guilty. Appellant’s application for probation was denied and appellant’s motion for a new trial was denied. Judgment was thereupon pronounced sentencing appellant to imprisonment in the California Institution for Women at Tehachapi. This appeal is from the judgment and from the order denying motion for a new trial.
Briefly stated, the facts, as shown by the record, are as follows: Just prior to 5 o’clock on the afternoon of September 26, 1941, an outbound street car was proceeding on 30th Street, in the vicinity of Palm, in the city of San Diego. The car made the customary stop at Palm to allow one of the passengers, a young boy, to get off. The boy exhibited his school pass to the conductor, whereupon the conductor opened the door and the boy stepped out on the street. The boy started to take a second step when he was struck by appellant’s automobile. There is no safety zone for passengers at that street car stop.
The conductor testified that when the automobile struck the boy, his body apparently lunged and was bounced and rolled in front of the automobile until the automobile came to a stop, approximately 100 feet north of the street car. The boy lived for a brief time but died within five minutes after the officers arrived. It was stipulated that the boy was 13 years old and that the autopsy report showed that he died from a skull fracture and multiple injuries.
The accident occurred in the daylight upon a dry, clear street in clear weather. The testimony showed that the boy left his seat in the street car when it was approximately in the middle of the block. The street car came to a gradual stop. Several witnesses testified that the street car had come to a complete stop before the boy got off. All witnesses, except the appellant testified in court that the boy stepped onto the pavement and started to take his second step when struck. Several witnesses observed the speed of appellant’s car at the time of the impact and testified that it was approximately 35 miles per hour. The boy passenger was carrying a bundle of groceries on his left arm and showed his pass to the conductor with his right hand. The groceries were scattered on the pavement when the officers arrived, and the two officers observed that there was one single skid mark 47 feet long and scrape marks continuing intermittently up underneath the automobile in the position where it stopped. When the automobile came to a stop the body of the boy was in front of the car with one leg twisted and caught in the undercarriage of the automobile. The officer testified further that he examined the rear stop lights on the street car and both of the amber lights were lighted. The doctor corroborated the fact that the lights on the rear of the street car were working at the time of the accident.
A number of witnesses testified as to conversations with the appellant at the scene of the accident. The appellant asked the conductor if he did not think she was half way past the door of the street car before the boy stepped out. The conductor replied that she was not. Another witness testified that after he examined the boy he started back to the street car when the appellant stopped him and stated, "I was past the door before it was open." The witness made no reply. The appellant stated to one of the officers that she had been driving alongside of the street car when the street car stopped suddenly and that the boy jumped out before the street car stopped, and that appellant’s automobile was past the door at the time and she was then traveling about fifteen miles an hour.
The appellant took the stand in her own defense and stated that she came up alongside the street car at a speed of approximately 25 miles an hour; that the street car did not slow up and she had no idea it was going to stop; that when the front of her automobile passed the front of the street car and her left fender was even with the door the boy came out of the street car door on top of the fender; and that she then stopped the automobile as quickly as she could.
The conductor observed the impact when the automobile struck the boy. Another passenger on the street car testified that she observed the boy start down the steps and her eyes were taken away from him when she looked directly across the car and saw the defendant’s automobile passing, that the defendant’s automobile was not up near the steps at the time she first saw it, and that the automobile was then traveling about 25 miles an hour. Another witness observed the automobile at the time of the impact and saw the front of the left fender of the automobile strike the boy. Another witness looked out of the street car window and observed the automobile before it struck the boy, and as it passed the window of the street car this witness estimated its speed to be 35 miles an hour. Another witness, who was riding on the right-hand side of the street car in the ninth seat back, saw the appellant’s automobile flash past the window of the street car after the street car had stopped. Another witness, who observed that the street car came to a gradual stop, first saw the appellant’s automobile in back of the whole street car while the street car was coming to a stop. This witness estimated the speed of appellant’s automobile at that time as 35 miles an hour. This witness testified that the street car had come to a complete stop before the doors were opened, and that the boy had one foot on the pavement and was raising the other foot when the appellant’s automobile struck him.
Section 500 of the Vehicle Code, as it read prior to the 1941 amendment, used the words "in a negligent manner or in the commission of an unlawful act not amounting to felony." The amended statute drops the quoted language and substitutes the words "with reckless disregard of, or wilful indifference to, the safety of others." It is further to be noted that the 1941 amendment adds a sentence to section 500, reading as follows:
"Hereafter, the provisions of the Penal Code, defining involuntary manslaughter, shall not apply to homicide caused by the driving of any vehicle."
Appellant’s first contention is that in amending section 500 in 1941, the legislature intended to set up the same standard of criminal liability as is prescribed in section 403 of the Vehicle Code, St.1935, p. 154, for civil liability for injuries to a guest of a vehicle operator except where the element of intoxication is involved.
The two sections employ entirely different language. Section 403 provides, in substance, that a guest shall have no cause of action for civil liability for personal injury unless the guest can establish that the injury proximately resulted from the intoxication or wilful misconduct of the driver of the automobile. Section 500, as amended in 1941, on the other hand, says nothing of intoxication or wilful misconduct, but provides only that when death is the proximate result of injuries caused by driving a vehicle with "reckless disregard of, or wilful indifference to, the safety of others," the operator shall be guilty of negligent homicide. We are, in effect, asked by appellant to hold that when the legislature in 1941 amended section 500 by striking out the words "in a negligent manner or in the commission of an unlawful act not amounting to felony" and inserted the words "with reckless disregard of, or wilful indifference to, the safety of others," it intended that an automobile driver should not be guilty of negligent homicide unless he be guilty of "wilful misconduct."
The language "wilful misconduct," was first written into our Vehicle Code in 1929. It has been defined by our courts on numerous occasions, and we are justified in assuming that if the legislature had intended to amend section 500 so as to make the requirements for a conviction of negligent homicide the same as for the recovery of damages by a guest it would have used the term "wilful misconduct," and not the words "reckless disregard of, or wilful indifference to, the safety of others."
Appellant next argues that the evidence is insufficient to prove that defendant was guilty of reckless disregard of, or wilful indifference to the safety of others.
The evidence in this case establishes that the street car running at approximately 20 miles an hour, came to a gradual stop at an intersection and that the street car stopped to permit a school boy passenger, aged 13, to alight; that the street car had come to a complete stop when the boy showed the conductor his pass and then opened the door; that the boy stepped out onto the pavement and started to take a second step when struck and killed by appellant’s automobile. The accident occurred in the afternoon on a dry street in clear weather. One witness, sitting in the street car, saw appellant’s automobile flash by the street car window after the car had stopped, and another witness observed appellant’s automobile coming up in back of the street car while the street car was slowing for the stop. The amber signal lights on the street car were working at the time of the accident. Appellant’s automobile was traveling at approximately 25 miles per hour at the time of the impact. No part of the evidence shows any attempt by appellant to stop until after the impact. Appellant admitted knowing the requirement to stop and not pass a street car when it was about to stop, but insists that she had passed the street car when it stopped. The trial court found the evidence sufficient to show reckless disregard of or wilful indifference to the safety of others.
As we view the record, the evidence is amply sufficient to support the court’s judgment of conviction. If the appellant was not observing the street car with sufficient attention to see that it was coming to a stop; if she took no notice of the amber stop lights on the rear of the street car as she approached to pass it; if, when she was about to pass it, she failed to observe that the door was opening or that a passenger was alighting, it may fairly be said that all of these acts combined on the part of appellant constituted such "reckless disregard of, or wilful indifference to, the safety of others" as to imply a high degree of probability that such harm would result as did, in fact, result in the instant case.
The judgment and order are affirmed.
BARNARD, P. J., and MARKS, J., concurred.