Eastwood, Bigelow and Freund. The opinion of the court was delivered by Eastwood, J.A.D.
Defendant, Leon S. Diamond, appeals from a conviction upon an indictment charging him with death by automobile in violation of R.S. 2:138-9.
The defendant contends that the trial court erred in (1) refusing to grant his motions for judgment of acquittal, and (2) in refusing to charge the defendant's fourth request, reading:
"4. In arriving at your decision, you will consider whether or not the decedent, Harold Evans, was or was not negligent; and if, negligent, you may consider such acts of the decedent on the question as to whether death was due to criminal negligence on the part of the defendant Diamond, or to some other cause."
A summary of the facts will suffice. At approximately 2:30 P.M. on a bright, clear day in February, 1951, the defendant was operating his automobile alone in a southerly direction along Route 27, a four-lane concrete dual highway near Deans, in Middlesex County, following at a distance of about 70 feet another automobile, the driver of which was unknown. Some distance ahead and unknown to the defendant, the automobile of one Harold Evans was parked on the shoulder of the highway where a local garageman had jacked it up and had removed the right front wheel for the purpose of repairing a flat tire. Because of an embankment, Evans was not able to get his car completely off the paved portion of the highway, with the result that two feet of the left side remained on the highway. According to the defendant, the automobile which the defendant was following, without
warning, swerved sharply to the left. In an attempt to avoid the car ahead, defendant stated that he immediately pulled to the right and for the first time saw Evans' car about ten feet in front of him. The Evans car occupied about four feet of the paved portion of the highway. The right front of defendant's car crashed into the rear left of the Evans car, causing the death of Evans. Mrs. Evans testified that her husband was standing on the shoulder of the road, fixing the trunk of the car; that she heard the noise of an automobile travelling on the gravel shoulder of the road and observed that the defendant's automobile was coming "on the shoulder of the road," at that time "pretty far back" and "coming pretty fast"; that she saw no other car on the highway. As the collision occurred, Mrs. Evans turned her head momentarily and when she looked back she saw her husband on the embankment. The severe impact drove Evans' car forward a distance of approximately 90 feet. Evidence was adduced from other state witnesses, but we do not find it necessary to discuss it. The defendant's motions for a judgment of acquittal made at the conclusion of the State's case and at the end of the entire case were denied.
Generally, the negligence required to support a criminal charge for a death caused by the operation of an automobile is more than ordinary common law negligence and greater in degree than negligence to impose civil liability. 61 C.J.S., Motor Vehicles, sec. 659, pp. 771, 773, citing State v. Blaine , 104 N.J.L. 325 (E. & A. 1928). See also State v. Schutte , 87 N.J.L. 15 (Sup. Ct. 1915), affirmed 88 N.J.L. 396 (E. & A. 1916). Such negligence is often described as "gross" negligence, the word "gross" in this collocation implying an indifference to consequences. Wharton on Homicide (3 d ed.), p. 681; 29 C.J. 1154, note 96 (c); State v. Blaine, supra. Gross negligence includes a "wanton and reckless disregard of the rights and safety of others." State v. Linarducci , 122 N.J.L. 137 (Sup. Ct. 1939); State v. Blaine, supra. Our courts make a distinction between gross negligence and willful and wanton disregard of
the rights and safety of others. To constitute willfulness, there must be design, purpose, intent to do wrong and inflict injury. To constitute wantonness, the party doing the act, or failing to act, must be conscious of his conduct, and, without having the intent to injure, must be conscious, from his knowledge of existing circumstances and conditions, that his conduct will naturally and probably result in injury. State v. Gooze , 14 N.J. Super. 277 (App. Div. 1951); Eatley v. Mayer , 9 N.J. Misc. 918 (Cir. Ct. 1931); affirmed 10 N.J. Misc. 219 (Sup. Ct. 1932). "* * * it is clear, as is said by Dr. Wharton, in his work on Criminal Law (section 1003), that, where death is the result of an occurrence unanticipated by the defendant, but which arose from his negligence or inattention, his criminal responsibility depends on whether or not the injury which caused the death was the regular, natural, and likely consequence of defendant's conduct. If it was, then the defendant is subject to indictment. If it was not, he cannot be properly charged with a penal offense." State v. Reitze , 86 N.J.L. 407 (Sup. Ct. 1914). Cf. State v. Hedinger , 126 N.J.L. 288 (Sup. Ct. 1941).
We are satisfied that the trial court did not err in denying the defendant's motions for acquittal. The State proved a prima facie case against the defendant and, at the conclusion of the entire case, a clear cut factual issue emerged that required its submission to the jury. The defendant contended that he was operating his automobile at less than the lawful rate of speed; that the proofs were not conclusive that it was his car that struck and killed the decedent; that he was operating his automobile in a lawful manner and attempting to avoid the car preceding him when it suddenly swerved to its left; and that the proximate cause of decedent's death was decedent's own negligence. However, all of these ...