"While the duty of using ordinary care falls alike on the driver of an automobile and the rider or driver of a bicycle, for reasons growing out of inherent differences in the two vehicles, it is obvious that more is required from the former to fully discharge the duty than from the latter. The great weight of the automobile, the high speed at which it may be driven, and the ease with which the great power of its motor engine may be applied, distinguish it in the matter of danger to others from the light foot powered bicycle, and much is therefore required of the driver of it to discharge the duty of due care.
"... Assault is defined to be an inchoate violence to the person of another, with the present means of carrying the intent into effect; while battery is the carrying out of the intent by the actual infliction of the injury.
"That an assault and battery may be committed upon one riding on a bicycle by another driving an automobile by the unlawful touching in collision is clear, for the force need not be direct. ...
"And, if the injury occasioned by the collision result in death, the culpable driver may be justly convicted of manslaughter if the collision was caused directly by such gross carelessness as to imply an indifference to consequences, or by the commission of an unlawful act. ...
"The evidence in this case establishes the collision and the hurt of [the bicyclist] by the force of it, and is therefore a rude touching of another. Intent on the part of the person charged to apply the force constituting the battery is, however, an essential element of the offense and must be shown to make the touching criminally unlawful. ...
"But the intent may be inferred from the circumstances which legitimately permit it. Intent to injure may not be implied from a lack of ordinary care. It may be from intentional acts where the injury was the direct result of them done under circumstances showing a reckless disregard for the safety of others, and a willingness to inflict the injury, or the commission of an unlawful act which leads directly and naturally to the injury. ...
"There may be a civil liability for damages for both ordinary negligence and willful injury. But there can be criminal responsibility for the latter only. ...
"We think it must be clear that the uncontradicted evidence in this case does not establish facts which permit the implication that appellant intended to injure [the bicyclist]. There was little difference in the speed at which they were respectively traveling; they had equal rights to the use of the street; they might both in the exercise of their rights pass the standing streetcar, or either might pass the other; they both proceeded to pass the car in the usual way, to the left of it, and appellant proceeded to pass to the left of the bicycle rider on that part of the street which was unoccupied, leaving a margin of safety five feet between his vehicle and the streetcar for [the bicyclist]'s use. In this position they proceeded in parallel lines from which appellant did not deviate up to the instant of the collision. ... If appellant had followed closely after [the bicyclist] and had run into his bicycle from the rear, or turned upon him and knocked him from his bicycle, the intention to harm might have been properly inferable."
Disclaimer