Summary
In State v. Beauvais, 102 N.H. 276, under circumstances where "the possibility that the defendant would fall asleep at the wheel was a foreseeable risk, of which it could be found he knew or should have known" the evidence was held to warrant but not to compel a finding of operation "in a grossly careless or grossly negligent manner."
Summary of this case from Keller v. DeLongOpinion
No. 4773.
Submitted October 7, 1959.
Decided November 3, 1959.
1. A complaint for grossly careless operation of a motor vehicle (RSA 262:15-a (supp.) may properly be maintained where the evidence warrants a finding that the respondent's course of conduct, in operating a motor vehicle in the early morning after having previously performed a full day's labor followed by other physical work and then six hours of night hunting followed by consumption of alcoholic liquor, was such as to render him chargeable with knowledge of a foreseeable risk that he would fall asleep at the wheel.
COMPLAINT, charging violation of RSA 262:15-a (supp.) by grossly careless operation of a motor vehicle at Jaffrey on November 27, 1958. Trial before Jason C. Sawyer, judge of the municipal court of Jaffrey. The issues raised by defendant's motion to dismiss, made at the close of the evidence were transferred by the municipal judge.
The transferred case reports that there was evidence as follows: "On November 27, 1958 the Defendant's automobile while being operated by the Defendant on Nutting Road, a public highway in the Town of Jaffrey, went off the road on a curve. There was . . . evidence that on November 26, 1958, the day preceding the accident the Defendant had worked by seven A. M. to four P. M., then went home, had supper, changed his clothes and drove to Peterborough at around five o'clock to arrange for a coon-hunting date that evening. He made arrangements to go hunting later that evening, drove back to Jaffrey, did some of the chores around home, and returned to Peterborough at around 7:45 P. M. at which time he went coon-hunting with friends until shortly before two A. M. at which time he returned to Peterborough, stopped at a friend's house, had two drinks of whisky and left there shortly after two A. M. and drove back to Jaffrey, a distance of ten miles, turning off the main highway into Nutting Road, a narrow and winding town road, intending to return the coon dog which he had borrowed earlier that evening. About a mile along this road on a curve the car went off the right side of the road, struck a tree, then traveled along one hundred feet or so, straddling a stone wall, finally turning over. There were no indications of any applications of brakes prior to the car's leaving the road. The following day, in response to inquiry by the police the Defendant stated that he must have fallen asleep."
Louis C. Wyman, Attorney General, Irma A. Matthews, Law Assistant, and Arthur Olson, Jr., county attorney, for the State.
William D. Tribble for the defendant, furnished no brief.
The motion presents the issue of whether there was evidence from which the defendant could be found guilty of violation of RSA 262:15-a (supp.), which makes it a misdemeanor to operate a motor vehicle "in a grossly careless or grossly negligent manner," not constituting reckless operation and which does not result in death. The section defines grossly careless or negligent operation as "that manner of operation of a motor vehicle which, although short of wilful and intentional wrong, is marked by more want of care than simple inadvertence and is carelessness substantially and appreciably higher in magnitude than ordinary negligence or carelessness, or a high degree of indifference to the operator's duty." Id.
The complaint alleged in detail the course of conduct later disclosed by the evidence at the trial, and characterized it in the language of the statutory definition quoted above. See State v. Turgeon, 101 N.H. 300.
The carelessness with which this defendant is charged consisted of the operation of his automobile under circumstances which would lead a reasonable man to appreciate the existence of a greater than ordinary risk that sleep would overtake him. The defendant had gone without sleep for a long period of time during which he had done a full day's work, had later done other physical labor, had hunted for six hours in the late evening and early morning of the next day, and had then consumed "two drinks" of intoxicating liquor at a time when any relaxation was likely to produce drowsiness. Under the conditions disclosed the possibility that the defendant would fall asleep at the wheel was a foreseeable risk, of which it could be found that he knew or should have known.
The evidence reported by the transferred case warrants, although it does not necessarily compel, a finding that the defendant in fact fell asleep while driving, and that his indifference to the risk that he might do so brought his conduct within the purview of the statute. See Steele v. Lackey, 107 Vt. 192; Ryan v. Scanlon, 117 Conn. 428. See also, anno. 28 A.L.R. (2d) 12, 62-69. The defendant's motion should be granted or denied according to the findings of fact which the trial court makes upon the evidence.
Remanded.
All concurred.