Where, as here, the defendant, on trial for the offense of involuntary manslaughter in the commission of an unlawful act, is charged with the violation of a specific penal statute proximately resulting in the death of the victim, and there is evidence authorizing a finding that these charges are true, a new trial will not be ordered by this court on the general grounds only.
Frank Hagans was, by agreement, tried by the court without a jury and convicted on an indictment charging him with involuntary manslaughter in the commission of an unlawful act, which act was a violation of Code 68-303 (d), providing in part as follows: "An operator of a vehicle overtaking another vehicle going in the same direction and desiring to pass the same, shall pass to the left of the vehicle overtaken: Provided, that the way ahead is clear of approaching traffic, but if the way is not clear he shall not pass unless the width of the roadway is sufficient to allow his vehicle to pass to the right of the center thereof in the direction in which his vehicle is moving." From the testimony of Wiggins, the only eyewitness, on behalf of the State, it appeared that Wiggins was second and the defendant third in a line of three cars driving north on the Louisville Road about 8:15 p.m. on August 15, 1953; that it was dark; that Wiggins in his automobile wished to pass the automobile of Bing in front of him and turned his vehicle into the left-hand lane of the two-lane highway for this purpose, then saw the lights of an approaching automobile and, realizing that he could not pass, pulled back in the right-hand lane behind Bing's car; that the defendant, driving a truck, pulled into the left-hand lane behind him for the purpose of following him around the lead automobile, but that, when Wiggins saw the lights of the approaching car and got back in line, the defendant "was doing pretty well and he didn't slow down; he just come by me and started by Bing's car when he hit him." The defendant's truck collided with the approaching automobile, killing its occupant. All three automobiles had been traveling down the road at about 35 miles per hour. The defendant offered character witnesses, and made a statement in which he said that the man ahead of him pulled out to go around, and he pulled out to go around; then the man ahead pulled back to the right, and he saw the oncoming light for the first time and tried to go to the left, but was hit before he could get out of the way; that he never saw the light of the car until he was so close he could not get out of the way.
In Lester v. State, 51 Ga. App. 146 (179 S. E. 869), that part of Code 68-303 (d) which prohibits passing to the left of the center of the road where the way ahead is not clear was held not so vague and indefinite as to be unenforceable. Accordingly, the defendant's violation of this statute would constitute negligence per se, unless the violation was the result of an emergency unmixed with any fault of his own; and whether or not such an emergency existed is ordinarily a jury question. Olliff v. Howard, 33 Ga. App. 778 (127 S. E. 821); Doyle v. Dyer, 77 Ga. App. 266 (48 S. E. 2d 488). The court here, sitting as a jury, found that no such emergency existed, and found in effect that the defendant had offered no sufficient reason in support of his statement that he was unable to get back in line, but that, on the contrary, he attempted to pass Wiggins' car after it had gotten back in line, and also to pass the automobile ahead of it, instead of applying his brakes and pulling over as Wiggins did. This finding is supported by the testimony of Wiggins that the defendant "was doing pretty well" and "didn't slow down." Accordingly, the only question for decision is whether this conduct, in violation of statute, shows such a degree of negligence as to be criminal negligence authorizing a verdict of guilty of involuntary manslaughter in the commission of an unlawful act. In Cain v. State, 55 Ga. App. 376, 380 (190 S. E. 371), it is held: "Under our law, criminal negligence may be either gross or wilful and wanton negligence, but not merely slight or ordinary . . . If [the defendant] acts in violation of a positive statute and his violation is the direct cause of the injury or death, the intent may be implied, although it is ultimately a matter for the jury to determine under instructions given by the court." It cannot be said as a matter of law that the defendant's negligence in blindly following another vehicle into the left lane of traffic, and then in attempting to pass both cars after the one ahead of him had pulled back in line (no emergency being shown which prevented him from also slowing his speed and following the lead car back to the right side of the road), was no more than ordinary negligence. Accordingly, the general grounds of the motion for a new trial are without merit.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.