McDonald, J.
The defendant was convicted of negligent homicide by the operation of an automobile at an immoderate rate of speed and in a careless, reckless and negligent manner, contrary to the provisions of Act No. 98, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 15226 [2-4]).
After dark, in the early evening of January 31, 1926, he was driving an automobile from the city of Grand Haven in Ottawa county to the village of Spring Lake. Crossing the bridge over Grand river, his way led around a curve on to trunk line M 16. While making this curve, he ran down and instantly killed Sidney Braak and his wife, Rosalin Braak, who were walking in the highway. The defendant was alone in his car and was the only eyewitness to the accident. The night was dark and misty. He testiled that he was driving about 20 miles an hour and that, though he was watching the road, he did not see them until he came upon them, and it was then too late to turn or stop 'his car and avoid hitting them.
The people claim that he was driving at an immoderate rate of speed under the circumstances; that he was not keeping a proper look out for pedestrians; and that he did not have his car under such control that he could stop it within the range of his lights.
The first assignment of error which we will discuss raises the question as to the degree of negligence
necessary to constitute
the offense
named in the statute under which the defendant was prosecuted. On the trial, counsel for the defense claimed that to establish the crime the people must prove something more than ordinary negligence, and requested the court to so charge the jury. The request was denied and the jury were instructed, in substance, that the defendant was guilty if he did not use ordinary care.
In their brief, counsel’s argument leads to the conclusion that,
“To prove the statutory offense of negligent homicide by the operation of a vehicle, it is necessary to show gross negligence in the sense of very great negligence, or gross failure to exercise proper care; a failure to exercise even slight care.”
In this State, under the common law, one is not criminally responsible for death from negligence unless the negligence is so great that the law can impute a criminal intent. If death ensues from negligence which shows a culpable indifference to the safety of others, the negligence is said to be gross or wanton or wilful, and. is equivalent to criminal intent, a necessary element of every common-law crime. One whose acts cause death under such circumstances is guilty of involuntary manslaughter or common-law negligent homicide. See
People
v.
Barnes,
182 Mich. 179.
By the enactment of this statute the legislature of 1921 obviously intended to create a lesser offense than involuntary manslaughter or common-law negligent homicide, where the negligent killing was caused by the operation of a vehicle. To do this it eliminated, as necessary elements of the lesser offense, negligence classed as wanton or wilful. Included in these terms is gross negligence. So that in the enactment of the statute there was expressly eliminated, as elements of the crime, all negligence of such character as to
evidence a criminal intent; and as we have before pointed out, wanton or wilful or gross negligence was of that character. Therefore, this statute was intended to apply only to cases where the negligence is of a lesser degree than gross negligence.
According to the classification of degrees of negligence by courts and text-book writers, all negligence below that called gross is slight negligence and ordinary negligence. Slight negligence is never actionable either in the civil or criminal law and is not so under this statute. Ordinary negligence is based on the fact that one ought to have known the results of his acts; while gross negligence rests on the assumption that he did know but was recklessly or wantonly indifferent to the results. The common law makes, one guilty of the latter degree of negligence criminally responsible; and probably in view of the numerous; fatalities caused by the operation of automobiles on our streets and highways, the legislature was led to enact a statute making one criminally responsible for a lower degree of negligence, for any negligence between slight and gross. Terms and classification of negligence are confusing. But, regardless of that, the basic idea of this statute is that every one who places himself in a situation where his acts may affect the safety of others must use every reasonable precaution to guard against injuring them. If he does not'do so, and death ensues, he is guilty of negligent homicide under this statute. It is a harsh statute, but finds justification in the serious results that are liable to follow the negligent operation of automobiles on extensively traveled streets and highways. The court did not err in refusing defendant’s request to charge and in instructing the jury that death resulting from ordinary negligence constituted an offense under this statute.
Further, it is urged by defendant’s counsel that the
doctrine of contributory negligence applies to relieve one of criminal responsibility under this statute. The court refused to instruct the jury in accordance with counsel’s view, and in that they say he erred. There is some conflict in the authorities on this question, but we think that the great weight of authority sustains the action of the trial court in holding that contributory negligence of the deceased is not a defense in such cases. Such was the holding of this court in
People
v.
Barnes, supra,
wherein the rule announced in
State
v.
Campbell,
82 Conn. 671 (74 Atl. 927, 18 Ann. Cas. 236, 135 Am. St. Rep. 293), was quoted with approval, as follows:
“The rule of law concerning contributory negligence ■by the injured person, as a defense in civil actions :for damages for personal injuries, had no application •to this case. The State was required; to prove the •alleged unlawful act of the accused and its consequences, but not that the deceased exercised due care to avoid the consequences of that unlawful act. The court did not, either by its refusal to charge as thus requested, or by the language used, give the jury to understand, as the defendant claims it did, that the conduct of the deceased was eliminated from the case. The court properly said to the jury that the State must clearly show that deceased’s death was the direct result of the defendant’s negligence, but that the injured man’s conduct became material only as it bore upon the question of such negligence of the accused, and that if the culpable negligence of the accused was the cause of Mr. Morgan’s death, the accused was responsible under the criminal law, whether Mr. Morgan’s failure to use due care contributed to his injury or not.”
In the
Barnes Case
the defendant was prosecuted for the negligent killing of one Mary Robb by the operation of an automobile. In speaking of how the contributory negligence of the deceased might be considered by the jury, this court said:
“So we say here that, while the claimed contributory
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McDonald, J.
The defendant was convicted of negligent homicide by the operation of an automobile at an immoderate rate of speed and in a careless, reckless and negligent manner, contrary to the provisions of Act No. 98, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 15226 [2-4]).
After dark, in the early evening of January 31, 1926, he was driving an automobile from the city of Grand Haven in Ottawa county to the village of Spring Lake. Crossing the bridge over Grand river, his way led around a curve on to trunk line M 16. While making this curve, he ran down and instantly killed Sidney Braak and his wife, Rosalin Braak, who were walking in the highway. The defendant was alone in his car and was the only eyewitness to the accident. The night was dark and misty. He testiled that he was driving about 20 miles an hour and that, though he was watching the road, he did not see them until he came upon them, and it was then too late to turn or stop 'his car and avoid hitting them.
The people claim that he was driving at an immoderate rate of speed under the circumstances; that he was not keeping a proper look out for pedestrians; and that he did not have his car under such control that he could stop it within the range of his lights.
The first assignment of error which we will discuss raises the question as to the degree of negligence
necessary to constitute
the offense
named in the statute under which the defendant was prosecuted. On the trial, counsel for the defense claimed that to establish the crime the people must prove something more than ordinary negligence, and requested the court to so charge the jury. The request was denied and the jury were instructed, in substance, that the defendant was guilty if he did not use ordinary care.
In their brief, counsel’s argument leads to the conclusion that,
“To prove the statutory offense of negligent homicide by the operation of a vehicle, it is necessary to show gross negligence in the sense of very great negligence, or gross failure to exercise proper care; a failure to exercise even slight care.”
In this State, under the common law, one is not criminally responsible for death from negligence unless the negligence is so great that the law can impute a criminal intent. If death ensues from negligence which shows a culpable indifference to the safety of others, the negligence is said to be gross or wanton or wilful, and. is equivalent to criminal intent, a necessary element of every common-law crime. One whose acts cause death under such circumstances is guilty of involuntary manslaughter or common-law negligent homicide. See
People
v.
Barnes,
182 Mich. 179.
By the enactment of this statute the legislature of 1921 obviously intended to create a lesser offense than involuntary manslaughter or common-law negligent homicide, where the negligent killing was caused by the operation of a vehicle. To do this it eliminated, as necessary elements of the lesser offense, negligence classed as wanton or wilful. Included in these terms is gross negligence. So that in the enactment of the statute there was expressly eliminated, as elements of the crime, all negligence of such character as to
evidence a criminal intent; and as we have before pointed out, wanton or wilful or gross negligence was of that character. Therefore, this statute was intended to apply only to cases where the negligence is of a lesser degree than gross negligence.
According to the classification of degrees of negligence by courts and text-book writers, all negligence below that called gross is slight negligence and ordinary negligence. Slight negligence is never actionable either in the civil or criminal law and is not so under this statute. Ordinary negligence is based on the fact that one ought to have known the results of his acts; while gross negligence rests on the assumption that he did know but was recklessly or wantonly indifferent to the results. The common law makes, one guilty of the latter degree of negligence criminally responsible; and probably in view of the numerous; fatalities caused by the operation of automobiles on our streets and highways, the legislature was led to enact a statute making one criminally responsible for a lower degree of negligence, for any negligence between slight and gross. Terms and classification of negligence are confusing. But, regardless of that, the basic idea of this statute is that every one who places himself in a situation where his acts may affect the safety of others must use every reasonable precaution to guard against injuring them. If he does not'do so, and death ensues, he is guilty of negligent homicide under this statute. It is a harsh statute, but finds justification in the serious results that are liable to follow the negligent operation of automobiles on extensively traveled streets and highways. The court did not err in refusing defendant’s request to charge and in instructing the jury that death resulting from ordinary negligence constituted an offense under this statute.
Further, it is urged by defendant’s counsel that the
doctrine of contributory negligence applies to relieve one of criminal responsibility under this statute. The court refused to instruct the jury in accordance with counsel’s view, and in that they say he erred. There is some conflict in the authorities on this question, but we think that the great weight of authority sustains the action of the trial court in holding that contributory negligence of the deceased is not a defense in such cases. Such was the holding of this court in
People
v.
Barnes, supra,
wherein the rule announced in
State
v.
Campbell,
82 Conn. 671 (74 Atl. 927, 18 Ann. Cas. 236, 135 Am. St. Rep. 293), was quoted with approval, as follows:
“The rule of law concerning contributory negligence ■by the injured person, as a defense in civil actions :for damages for personal injuries, had no application •to this case. The State was required; to prove the •alleged unlawful act of the accused and its consequences, but not that the deceased exercised due care to avoid the consequences of that unlawful act. The court did not, either by its refusal to charge as thus requested, or by the language used, give the jury to understand, as the defendant claims it did, that the conduct of the deceased was eliminated from the case. The court properly said to the jury that the State must clearly show that deceased’s death was the direct result of the defendant’s negligence, but that the injured man’s conduct became material only as it bore upon the question of such negligence of the accused, and that if the culpable negligence of the accused was the cause of Mr. Morgan’s death, the accused was responsible under the criminal law, whether Mr. Morgan’s failure to use due care contributed to his injury or not.”
In the
Barnes Case
the defendant was prosecuted for the negligent killing of one Mary Robb by the operation of an automobile. In speaking of how the contributory negligence of the deceased might be considered by the jury, this court said:
“So we say here that, while the claimed contributory
negligence of Mary Robb is no defense in this case, yet it does not follow that her conduct should be eliminated from the case; it should be considered as bearing upon the claimed culpable negligence of the respondent, and the question should all the time be: Was respondent responsible under the law, whether Mary Robb’s failure to use due care contributed to her injury or not?”
In the instant case the court eliminated the question from the case by instructing the jury, as a matter of law, that the deceased were not guilty of contributory negligence. In this we think he erred.
The defendant was driving six feet from the curb. The night was dark and misty. He testified that he was keeping a lookout, but that he assumed that no person would be walking out in that part of the highway where he was driving. The deceased were not crossing the highway. They were walking six feet from the curb with their backs to approaching cars. We think it was for the jury to say whether, under all of the circumstances, they were using ordinary care for their own safety in walking six feet out from the curb in a dark and misty atmosphere on an extensively traveled highway with their backs to approaching automobiles. Considering the darkness, the misty atmosphere, the slippery condition of the pavement, their position in the highway, the fact that there was a safer place to walk, and their knowledge of the fact that automobiles would be constantly overtaking them from the rear, were the deceased, at the time of the accident, using ordinary care for their own safety? If they were not, that fact would not be a defense, but it would be an important factor in the case which the defendant would be entitled to have the jury consider. Pedestrians have equal rights with automobiles in the use of the public highways. Their duties are reciprocal. The driver of an automobile has a right to assume that a pedestrian will use ordinary
care for Ms own safety, and any assumption that he has a right to indulge in may be considered by the jury with the other facts in determining Ms negligence. Pedestrians in a public highway have a right to assume that the driver of an automobile will use ordinary care for their protection, but they may not rest content on that assumption and take no care for their own safety. Some of my Brethren are of the opinion that the decedents cannot be said to have been guilty of contributory negligence, because they had a legal right to walk any place in the highway, because they had a right to walk where they were walking at the time of the accident. It is rather a question of prudence than of legal right. One may have a right to amble all over a highway, but a man of ordinary prudence would hardly do so when it is filled with moving automobiles. It is a matter of common knowledge that at the present time a highway extensively traveled is a place of greater danger than a railroad track. - With this knowledge, a pedestrian must be held to exercise a reasonable degree of care for his protection. Were the decedents exercising such care for their safety under the conditions existing at the time of the accident? The particular circumstances of the occasion made the question one for the jury.
Complaint is made that in his charge to the jury the court called attention to numerous provisions of the motor-vehicle law, none of which was applicable to any facts in the case. He instructed the jury as to the care an operator of an automobile should use, and the proper speed at which the car should be driven in approaching an intersecting highway, bridge, dam, sharp curve or steep descent, and in traversing an intersecting highway, bridge, dam, sharp curve or steep descent. There is no evidence that the defendant violated these provisions of the law, but, though it was in no way applicable to the facts in the case, we are not
convinced that the jury was confused or misled by the instruction. But the situation was different in regard to the effect of the instruction as to the legal rate of speed in cities. Mr. Jorgensen, a witness for the people, had been permitted to testify as to the rate of speed the defendant had driven his car in the business section of the city of Grand Haven just before the accident. So when the court instructed the jury that the driver of an automobile should not operate it at a greater rate of speed than 15 miles an hour in the business portion of a city, he emphasized the fact that the defendant had violated the law shortly before the accident, and at a point remote from it. The testimony of the witness as to the rate of speed the defendant was driving in the business section of the city of Grand Haven was neither material nor competent. It should have been excluded. Standing alone it might not have seriously prejudiced the defendant’s case. Standing alone, the judge’s charge in respect to the permissible speed in cities might not have misled the jury; but coupled with the incompetent testimony we think it constitutes reversible error.
For the reasons indicated the judgment of conviction is reversed and a new trial granted.
Bird, Snow, Fellows, and Clark, JJ., concurred with McDonald, J.