Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
There are perhaps few disasters that arouse a larger variety of human emotions than the untimely death of a six-year-old school boy who in crossing the highway from the bus to his home is struck down by a passing motor vehicle. Among those natural excitations, profound sympathy and bitter resentment are often in balance.
In the present instance Herman Pruser IV was the six-year-old boy. Frank Oliver was the driver of the motor vehicle. The fatal mishap occurred at about 1:00 P.M. on April 9, 1954 on the Sparta-Newton Highway in the Township of Andover, Sussex County.
The grand jury of the county presented an indictment against the driver Frank Oliver, charging him with offending
the statute, N.J.S. 2 A:113-9, in that (first count) he operated his automobile carelessly and heedlessly, in wanton disregard of the rights and safety of others, and (second count) he drove his vehicle in willful disregard of the rights and safety of others.
At the ensuing trial the jurors resolved that the defendant was guilty of the commission of the offense alleged in the first count and not guilty of that charged in the second count. The defendant appeals from the judgment of conviction.
Wisely may we borrow the laconic but trenchant language of Mr. Justice Brennan in the Lewis case, supra , 11 N.J. , at page 222: "The emphasis is upon the reckless indifference to consequences of the intentional act of driving the motor vehicle in the face of known circumstances presenting a high degree of probability of producing harm." We italicize the words expressive of the essential components of the criminal offense.
The distinction between the circumstantial elements of a civil tortious wrong and those necessary to constitute the penal offense must be recognized. Mere negligence is not wantonness within the import of the statute. Vide, State v. Diamond , 16 N.J. Super. 26 (App. Div. 1951); King v. Patrylow , 15 N.J. Super. 429 (App. Div. 1951).
In the following narrative we impart the significantly material circumstances accompanying and surrounding the occurrence of the misfortune which we, of course, derive from the transcription of the evidence.
The defendant is a textile salesman and evidently a resident of good repute in the City of Paterson. At about 11:30 on the morning of April 9, 1954, accompanied by his brother Fred and by his attorney Charles Turndorf, a member of the bar of this State, he departed from Paterson to attend a corporation business meeting in the afternoon at East Stroudsburg, Pennsylvania. He was the owner and driver of a Cadillac automobile, a circumstance which the ...