On error to the Essex County Court of Quarter Sessions.
For the plaintiff in error, J. Henry Harrison and Samuel I. Kessler.
For the state, Anthony M. Hauck, Jr., assistant attorney general.
Before Brogan, Chief Justice, and Justices Bodine and Heher.
Plaintiff in error was convicted upon an indictment charging that, on September 8th, 1937, at the City of East Orange, in the County of Essex, he "did cause the death of Douglas Strowe and Winnie De Voe by driving a motor vehicle carelessly and heedlessly in willful and wanton disregard of the rights and safety of others," contrary to section 2:138-9 of the Revised Statutes of 1937; and he sued out this writ of error to review the judgment entered thereon. The entire record of the proceedings had upon the trial has been returned with the bill of exceptions, under section 2:195-16 of the Revised Statutes, supra.
Point I: The first question raised by the assignments of error and the specification of causes for reversal concerns the propriety of an instruction.
After the jury had deliberated upon the case, they requested further instructions. This colloquy occurred:
"Juror No. 10: In regard to the law as to the right of way of a pedestrian over an automobile when a pedestrian is crossing on the crosswalk --
"Juror No. 10: -- you said that the automobile must yield the right of way or the driver must keep his car under control so as to be able to yield the right of way to the pedestrian when their paths are convergent. The fact that the driver may not see the pedestrian has no effect on his guilt under the law?
"The court: I think this is the answer to your question. It was the duty of the driver of this car as he approached the crossing at Hollywood Avenue to have his car under such control, both as to speed and as to observations of the conditions existing upon the highway, as to be able to reduce his speed and to give pedestrians a reasonable opportunity to pass in safety if that pedestrian was approaching the crossing at the same time and in such a manner that if both continued their respective courses there was likely to be a collision."
It is said that this instruction was "not responsive to the juror's question;" that it was "definitely misleading;" that it "completely ignored the theory of the defense and that portion of the testimony to which the juror's question was directed;" that it placed "a lessor burden of proof upon the state than the law requires, and that it is an incorrect statement of the law as contemplated by the juror's question." Defendant had testified that he was blinded by the headlights of an automobile that turned into Central Avenue from an intersecting street, and therefore did not observe the presence of the victims upon the roadway; and the argument is made that what the trial judge said was "tantamount to an instruction that if the defendant did not see the pedestrians -- regardless of what reason prevented him -- he was guilty."
We do not regard the criticism thus made as well founded.
The trial judge did not say that guilt could be predicated upon a mere failure to "see the pedestrians." Rather, he charged the duty laid by the Traffic Act (Pamph. L. 1928, pp. 721, 728; R.S. 1937, 39:4-35; 39:4-36) upon the driver of an automobile approaching an intersection; and so he laid down a standard that plainly ...