For the State, Duane E. Minard, Jr., Prosecutor; Richard J. Congleton, Assistant Prosecutor.
For the plaintiff in error, Edward M. McGlynn.
Before Case, Chief Justice, and Justices Parker and Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. Eugene Lawrence Kellow was tried and convicted in the Essex County Court of Quarter Sessions upon an indictment charging that on February 15th, 1946, in the Town of Belleville, he caused the death of Mrs. Anna
Glennon by driving a motor vehicle carelessly and heedlessly in wanton disregard of the rights and safety of others in violation of Revised Statutes 2:138-9 -- the crime commonly known as "death by reckless driving." The matter comes before us on assignments of error and also on specification of causes for reversal under a certification of the entire record.
The first point argued by the plaintiff in error is that the verdict was against the weight of the evidence. There was testimony from which it could be found: Four persons, of whom the decedent Glennon was one, alighted from a north bound bus on Franklin Avenue, a county highway in the Town of Belleville, at a point almost facing the broad entrance drive to the Essex County Isolation Hospital where Mrs. Glennon and another were employed and a third of the group was a prospective visitor. The spot was not posted as a bus stop but buses frequently stopped there, and the bus in question stopped on an ordinary buzz signal. The date was February 15th, 1946, the hour was about 7:20 in the evening, and the weather was clear. The group waited for the bus to proceed and for the traffic to open and then undertook to cross the remainder of the highway to the westerly side. When they began that crossing a view to the south disclosed a clear highway. A car was observed coming from the north at a considerable distance and at an average rate of speed. When the group was at about the center of the road defendant's car came from the south at a very fast rate of speed, smashed into the group and hit two of them with such force that one, the decedent Glennon, was thrown ten feet into the air and many feet ahead of the point of impact and killed almost instantly, and another, Richard J. Applegate, was thrown a considerable distance and severely injured. The car left skid marks on the road surface for a distance of 136 feet. It careened and finally stopped at right angles to the curb. The defendant admitted to the police that his car was going at about 40 miles an hour. A witness estimated that it was going at 50 miles an hour.
To justify the setting aside of a verdict in criminal cases on the ground that it is against the weight of the evidence, the verdict must so clearly appear to be against the weight
of the evidence as to give rise to the inference that it was the result of mistake, passion, prejudice or partiality on the part of the jury. State v. Tomaini, 118 N.J.L. 162. The point is not sustained.
It is also argued that the court made several errors in its charge to the jury. The first contention under this branch of the argument is that the court erred in failing to charge on the question of proximate cause and in charging with respect to the effect of contributory negligence by the deceased. The court charged that the defendant was accused of causing the death of Anna Glennon by driving a motor vehicle carelessly and heedlessly in wanton disregard of the rights and safety of others; that the defendant was presumed to be innocent until proven guilty beyond a reasonable doubt; that the burden of proving guilt beyond reasonable doubt was upon the state throughout the entire case and never shifted; that the defendant was under a duty to exercise such care and skill and to have his car in such reasonable control as a reasonable and ordinarily prudent person would under the circumstances; that he was under a duty to observe the provisions of the Motor Vehicle Act as to rates of speed and otherwise, but that the mere neglect to use such care or observe such provisions was not necessarily sufficient to form the basis of a conviction and was merely a circumstance to be considered along with all the facts and circumstances of the case; that the defendant's neglect must be more than mere carelessness and neglect, that it must go to such an extent as to constitute a reckless indifference to, and disregard of, human life. Thus it was put fully to the jury that the defendant was not to be found guilty unless it was proved beyond a ...