The conduct of the deceased, if amounting to contributory negligence, is no defense to the charge of involuntary manslaughter. Schultze v. State, Ann. Cases, 1912, C. 501; 2 R. C. L., 1213. It is, however, material and relevant to the extent that it bears on the question of the negligence of the defendant. S. v. Campbell, 18 Ann. Cases, 236.
But negligence alone, which might be sufficient to sustain a civil action, will not justify a conviction for manslaughter.
The question was carefully considered in S. v. Tankersley, 172 N. C., 959, and the following principle announced: “All of the authorities are agreed that in order to hold one a criminal, there must be a higher degree of negligence than is required to establish negligent default on a mere civil issue, and that in order to a conviction of involuntary manslaughter, attributable to a negligent omission of duty, when engaged in a lawful act, it must be shown that a homicide was not improbable under all the facts existent at the time and which should reasonably haye an influence and effect on the conduct of the person charged. ... A negligence which will render unintentional homicide criminal is such carelessness or recklessness as is incompatible with a proper regard for human life. An act of omission as well as commission may be so criminal as to render death resulting therefrom manslaughter. But the omission must be one likely to cause defith.”
These are our guides in determining whether there is evidence of the guilt of the defendant, which ought to have been submitted to the jury; and while the evidence must be considered in the light most favorable to the State, this being a motion for judgment of nonsuit, “It is neither charity nor common sense nor law to infer the worst intent which the facts will admit of.” S. v. Maney, 86 N. C., 660.
The fact which stands out prominently and about which there is no debate is that the defendant was not exceeding the speed limit prescribed by statute, and he was not therefore engaged in an unlawful act. He was driving along a country highway with no one in sight except the occupants of the car in front. He knew the forward car was going to stop, and thought it was for the purpose of letting Russell Mink get out *758at his home, but he also had notice that the occupants of the forward car knew he was running behind, because they had signalled him.
Colvard, the driver of the front car, was a man of mature years, as the defendant knew,. and he says Russell told him of the car behind. When Colvard stopped at the Mink home he left no room to pass on his left and the defendant turned to the right, still running at a lawful rate of speed, and as he passed the- little boy got out of the Colvard car and ran in front of the defendant’s car and was killed.
Colvard, the principal witness for the State, testified, among other things: “My car was still when he stepped out and there was plenty of room for him to have stood by my car and let the other car pass. Apparently when he saw he was going to be hit he run in front of the car. Almost immediately when he stepped out of the car the other car struck him. The boy stepped out so quickly the other fellow had not had time to see him before it happened.”
We fail to see in this any evidence of recklessness on the part of the defendant, or any facts or circumstances which could reasonably lead him to believe that his passing the forward car would probably cause death or serious bodily injury.
Knowing that Colvard was a full-grown man, and that he and Russell knew the ear of the defendant was behind and running, the defendant might reasonably expect, instead of injury or death, that the boy would stay in the car until he passed, or if he tried to get out that Col-vard would not let him do so, or if he got out he would remain in a place of safety and would not run in front of a moving car.
In our opinion the motion for judgment of nonsuit ought to have been granted.
Reversed.