People v. Tennis

SHINN, Acting P. J. We have for consideration an appeal from a judgment of conviction by a jury upon an information charging defendant with a misdemeanor violation of section 192(3) (b) of the Penal Code, in that he did wilfully and unlawfully, and with gross negligence, commit an unlawful act in the operation of an automobile and thereby cause the deaths of Erie Ruud and Mrs. Eric Ruud.

It is not claimed on the appeal that the evidence was insufficient to justify the verdict. The sole contention is that the court committed error in not giving to the jury, of its own motion, an instruction as to the conditions in which driving an automobile on the left-hand half of the highway would be excusable. It is necessary to preface our discussion of the claimed error with a brief statement of the circumstances of the accident. It occurred about 5 o’clock p. m. on the 29th day of December, 1946, on U. S. Highway 101, in the county of San Luis Obispo. Defendant was driving southerly, with Mr. and [522]Mrs. Ruud and Miss Loretta Albert, as passengers. William Bogue and Ms wife were driving northerly. The two cars came into practically a head-on collision on the east half of the highway. The street was dry, the. weather was clear and it was approaching dusk. The Bogue ear was traveling 40 or 45 miles an hour and defendant’s car at a higher speed. Mr. Bogue testified that the visibility was fairly good, it had not turned dark yet, and that he saw defendant’s car approaching on the east side of the highway at a distance of about 150 yards. There were two other vehicles traveling south. Defendant was then abreast of the most northerly cine and had not overtaken the other. Mr. Bogue drew over to the right-hand side o£ the road, with his right wheels extending onto a sloping bank. Defendant’s ear came across the road and struck the Bogue car in this position.

At the point of collision the paved highway was 22 feet wide with a 7%-foot shoulder on the east side and an 8%-foot shoulder on the west. The middle of the pavement was marked with a double white line which extended 400 or 500 yards northerly of the point of collision, and for some 100 yards to the south. At a point 792 feet north of the point of collision, and for 200 or 250 yards north of that, the highway was broader on the west side and automobiles traveling south could pass on the pavement without crossing the middle line. Defendant testified that he had passed one southbound car and had endeavored several times to pass the remaining car that was immediately ahead of him; that the driver of this car would speed up when he attempted to pass and then slow down and that he, defendant, was irked at this procedure and that the other driver also appeared to be irked at defendant’s attempts to pass him; that he endeavored to pass at some point to the north where there was room to pass without crossing the middle line; that he was then going 40 or 45 miles an hour; that he did not see any car approaching on the east half of the highway, although he indistinctly remembered seeing the lights of the Ruud (Bogue) car, just before he struck it; that when he pulled abreast of the car ahead of him the car behind him had come close up and that he could not turn back between the two cars; that he had speeded up in attempting to pass the car, stepped on the gas harder when he realized that the Bogue car was upon him and that he was then going 60 or 65 miles an hour; that he did not slow down, apply his brakes or endeavor to turn aside. The point of the collision was between two curves in the highway, each of them curving to the