MANSLAUGHTER CHARGE DISMISSED.

Poverty Bay Herald, Volume XLII, Issue 13636, 17 March 1915, Page 4

MANSLAUGHTER CHARGE DISMISSED.

The .CouVt yeslevday afternoon continued ihe hearing of the case m which Pajai Peakman was charged with on February 13, at (gisborne, committed raansteughter Ay unlawfully killing one Gerhard. Howe. . The evidence of. .the inspector of traffic Charles Henry. Ferris, was being taken. Proceeding, witness said he was just below the Herald. He . saw deceased cpmitig dqwa. on the wrong .side, .and about 10ft or, 12ft from the kerbinc at the Peel street corner. He curved m towards Peel street, and came out about 9ft from the kerbing v As far as he could remember, the. traffic was all going the-saine direction, excepting the cyclist. There were some : carts .lined up. along-side-^tlie. kerbing, one being opposite M&lcolnr's. mart.: When he observed the position, he; couM not see '.ho-vv the cvoftst could '> get through unless the niptoiast draw hack. '.'■*. The cyclist tried tft get^iby, and he collided to the right oS;~- tfhe- .bijggy- : arid Slightly behind .-it:' After .striking, rthe cyclist, he saw |he car run over one of two men walking on the road ahead of the car. He did not notice; any material difference m- the speed "of; $ie ca^ between ,tb.e two collisions, a $htwce>;<>i< abpu,t,J.6ffc. Had the. mpkor.ist fepplied-yhis^ibrake. after tthe, fir3i>.r.ac,c|de,ntr hV -would; probably, have a:yj?i&d:7i J&*x- seeond r ■ accident. :•„ Th^ street };w^iS'Avate.r.ed, amLthe, car might have, skidded, but it.?. would probably onlyi? haye knocked? deqeflsed down. The carr. wast -not^gpjng.unore than ,10 miles ; an-^hourf Hq -prepared' .the plan from date taken, at *h» tinw. .Hia found accused was the "driver of- the car and the other occupants, Yfftrejnatiyeß, There was abouA 9ft from the kerbing^ He saw nothing m the (traffic to indicate i t-Ke necessity of an erratic course. Probably, as he approached the cyclist there may. have, been cause to '■ zig-zag -a -bit. As .accused's -was -•the'-. overtaking, vehicle, he should have- given way, jind dropped \ behind v the buggy, when he saw the cycliati- approaching^' Had he-been paying; attention he must h^ve seek, he ,w»s ! not -leaving ' the cyclist 'foQin.- ", The ? cy«list -could not, pass ©n^the kerb side/ oil -account of -therfapiy nQr ; oii;.the other side-on -account- of ;, the approaching. buggy 1 ;- Hje. sjpbk©> to accused after the accident, .and tdld-binv^oVto go away -until he had gdt?.p.arjbic.ula,ra as he was a stranger. Accused' seemed very excitedgand^.tgpk . so»ie;Hime-.to give .his name. Witness took it.. .Accused had lost his head.: Asked if ..he knejf apythihg -abo Ti t..driving a. car' he said "a littlp." Ask l ed 'hoivv l^ng. _h.Q .had been driving aectised'/said . either three, weeks , .or three months'. .When S|k;ed tp JnpVe ofif- accused Said, he could; f ac- ;- couht: of r the pppple, ., as (jthet^e, ' tv.ere ,-7p ; or 80' around. '■..Witness cleared .the ' tTackj, ■and;abcused..n>ov^.,on!. . ..Het had to ; release' jiis brakes... „w , f . v ..', .i ;.>?,

To .Mr Burnard :. There .., would be xoom for the traffic m question to.-., pass witlit^care. .R> wag the^practice m Gisborne.fbr th^. tra^Rcji.jtd juse, pns side of they road, ' ithe surf ace. .on. .one side vl being betitjer: <than . ihe ; .other, feeing a^y chicle in.^t. Williams.'. position ' i£ . would be Tight for .a, stronger to pass as had been done, but they' "fisre . both breaking the, rule of the road,",, „■ .,..' : i ' r Jack D. McLeod stated that he saw the accident,:' H^, heard ; no ,wai;ning from the car, wliiih seemed to be travelling between 10- and 12 ' miles on*-hour. Accused must- have been applying the braids after the ;« first accident as he would' not have b,een ; a,bjLe to : pull up, so quickly afters the second accident. It occurred tobu quickly.. <• to ,• notice :any change/in, speedy '^Th© car had: travelled about; itsA own,-. Afengthi. after.v.the first accident wJjeniVistryckdeceased. Deceka*W;hWa.#3ahojatv. a. chain,. ayia'y. The car., must haveiifknopked. deceased,'. about 6ftt,^head qfs&he carj^ followed, him up anjl; vautoyer, his^ohest, rolling; .him over 1 two or three times'. When the; car stopped deceased was m a kneeling posi- !, tion against -the back . wheel. He \ thought the brakes must have stopped the car. There was a clear view betweeniheand the car. . He thought that accused's -^peed. was!; rather fast, but there" were othersbtra veiling.; faster than h$ .wait;. T&e. car, was : on its wfcong- side : of the road. When .the car.; pulled, up

thero was 7 or 8 feet between the kerb-

ing.aod the neareskeide of. the cfti\- He thought if.Ja .man Ihad^cojitrol -of his nerves. he .should have been -.able.-to pull up 'before --.he ran- over deceased, but ho thought accused, must have vlost -;his necveu -.^,:v - : y: ■-->.■•. ■•■:.;■■■"■■', ; . /.Eliis*' closed -.-the .case* for the Mr ■ Burnardj-r-foiv the defence, intimated>that he tva»-; calling evidence' 16 slipw -that deceased 1 was . quite • a . capable driver. It seemed to be. cleiar that none jofc th«» oecujjaints^of the- car' saw deceased ra* -all, and-> it -was quite..possible, .that vf he cai't which obstructed .the view 1 ; of'JMr. ~!s}teab>- had also -obstructed accu«ed<s viesypj^ -'The brakes • p?ust -\ihve beeii 'ap'plied-i-before th<e ■ sec6_nd ; .accident, or 1 the tiar- \*©j(Jid .hot have been pulled up> «p '^Uicklyv' ; -This woxild '. be ■pome out .by tli e> witnesses. ! The car- was. not a >'n&fc. - 6he?^having been the first ,import^dfto Wairoft, and its brakes were consequently ' not superior to those of more modern c&rs.-

- John. WnftvH/ ;Hattss, ;;;ta*i/ driver, of WaiToa, detosed that^he knew accused, who was driving a; SidLay-W^laQy- car. He had seen; it v at Wairoa three, years ago. He had j seen./ accused ' driving '- the car frequen^ly'^before. coming to f Gisborne:,; race time at ' Wairoa, when 1 the*© must" be s 50 cars ; plying for hirfe:- - Fito'm what' he : ,h.ad seen -.''of 1 accifted; ,thei;e 'he %as. a- careful and capable driver; ;>Se cpnaideredi » can tra,-' veiii*%\ at -10 miles 'wdiild ; - pull i^p in' aboufr-lSffcj but'lie 'had; driven accused's car ; «'nd<ttie brakes woxild not pull up the wheels altogether, so it ,, would •go a "littler further. V With a smooth, surface: : it- 'was pretty ■•■ bad for; pulling^ up. J^ •Co 'Hi •■> Nolan :[ He 1 - had seen; accused more tfiata on£e' a wfeek,^ and had- driven with hint : since the "• accident/ He x bad seen hint' driving' through .the . crowd, bufri-cbuld' not tell if- he -was nervous, ■ The 'at North Clyde was bad eiidUgh.'- 1 ' """ / ' ■'■'"' •"• V. .' -.:■}'.[ Jas. "M. Taylor, station manager- a.t; Wairoa, -said he had known.' accused, ab-otffc -twelve' years; . - The . .laittey bad v worked for ~ witness, ;. generally .with . machinery. He knew that Accused • was ' practicing .with 1 . thii?. car b,efore\ic > Qmir)g .to (jflstoorne. He had a .'natural ,inclin,- ;- atjbn towards; V machiheryj. • which . he understood. ,' He. took, special interest m accused's driving at the Madi.- Gibas.,., a bußy f time- at wairoa,. and her iri%' carefully, a.tid well.; He.; cou!4 ,/npfc , Bay y accused Svas a , highly experienced driver,', but 1 he could say he .wite a . careful mari. Accused had handled his car successfully m difficult places ; other 4 drivers. ; -- Had . broken axles arid othets; haci -iiotr cared <t0.g0 % ;. .-,.•. Tftv Mr. Nolan : .Accused had had . the car for a •"'little' over a' .raohthi . but * his failing \wa> that he 'was a highly- 1 strung man'- Ayvih little confidence, m his. own abijity. „ "" .„• '"• ■■ '■'■■ Watirie Huka, of . Whakaki, sheepfarmer, stated . tfiat,fhe,.\vas the owner of the car» There wfli'e,-fo,iu > i , occupants with the driver.-. ■■" Accused .was taught to drive. tlie '■car by, H>lv, Qtn'ldlT,'? expert. Apcused ,. -vanning .about Wairoa, taking them to . the races ,.. and, making trips to Nuhaka and Malua., .Aftev. ft niohtl^ experience he j.app(Eiared- a -eapab\e: diiver-*rthey entrusted their olives to : , him. ... jl \\e 'was -not, capable, what was; the.vgood. of-, coniing over such a road,#? thaMromiWairpfit? { When they approached the buggy haftctysed' sounded the yhorn.vThey game - the buggy , and when .,th§ latter grilled,, aside tlwy ran abi'east of the buggy, >whi.Qh,: they kept alongside till they collided with the ,JO-ypU^V yho ,f^aiv. zig-zagged becaii^e tjie cy.QlM.t : ...theiia. He ' nosi.ced;,\bo.th the .oar and v cyclist s^jViiig:, Mtei'i striking -the icyclisfc:,the nexi^thmg.'he,.no.ticed was-. them' f pulling a njan,, ((leceaßjed) out' irdmi undernißath the car.--, . »He( had not seen deceased" prior tlo iceideritj'iaevii^ attention m/isil: dirftcietf ,-upoH?Vthe.?>cycJ}«fcsi?\ thp.ui^t;/ ; it-.vw^ : .riJitjiral ithat--tlid-dviyjeifxt* ajtyjif^ion- ' fKfifi \cpnc4nipA.tedr,lon thcp^clist 'aj]^.-!, '-<%*■ -■"•>-i '/ J >•' '•>■ ' ; J Toi^jr : They' iyfUtfi going ; A^ery alrt'wly; lie had no idea at what price. He thought they -were going along at a cradling pace. ! ..'.;'

Matera Huka, of Whukaki, stated that he occupied the front seat beside accused- a lul as soon as they approached the buggy- accused sounded the horn. The buggy pulled off to allow' them to pass" and the car and- the^buggy jcame ajong together until ,iyej r c'^njmenced to zig-zag "with the cyclist and niter '^nat tho accident occurred. The next thing ho saw was a man, crawling out from under the car, and he thought at the time rb, was. ; the man ; with the bicycle, lie did not see deceased until he was being, brought put .from under the car. When the collision \vith the cyclist occurred he thought the brakes were applied.:- a-s. the car sort of stopped. To Mr. Nolan: He did not see deceased until the oar had stopped. „ .That was., because he . kepti his eyes pn the man with the bicycle. , He did not ■know whqre deceased came.,. from, and

he had taken his eves of the front o

the road to. see what became of Ifie cyclist. .He could not say, if accused had done the same. ,

Paku Peakman, accused. . said .he. had driven the car .for . about, .a- ..month before.the ( accident. Ho was, taught to drive by .Mr CoqldU's expert and by 'Mr Hunter : Brown's man. »He had. heei) driving about. Wairoa a good deal.•bulor,e coming to Gisborno. On the morning, of the., accident they came along Gl^dstone^ rqjid. all, right for some distance. j[e .saw-- a. buggy travelling ahead and - r ßonnderl ; > his : horn. v The buggy turned pff : > on to. the '$r.am line find he- (accused) #amo abreast on the rigUt^f- which, portipn.. was clear. , That time the-, cyclist /fjhot otifc. and . turned to. a-Void ..-.him*- They nearly collided; and he (accused) turned quickly to avoid the^yelist. . The latter, turned the same wa,y and Jie (accused) put on his footbrake as his hands were holding, the wheel. „Afc this tkne he got a shock and was -all. : of. a shake and the car came to a standstill as he put his foot brake 0n. .» Just, then the, police and. another

jnan : . came up to ask him his name and no, was tall of a shake and a .shiver. He did not .see deceased and on the second time -when he nearly struck .'tho cyclist he put on hia. foot brake.

To , Mr • -Nolan : When he struck the -cyclist he was looking ahead and not at the cyclist, who he Jiad passed. He got a start and was shaking and shivering and could not see anything. To the best of his belief he was looking ahead. Tf he had. not run into the cyclist he wou)d .most ljkejy, ,, have seen the two men' *lieaa.- .■_ Hjs, did not see the two men ahead. f< Hjs eyes were .on the cyclist before they collided", and he had put on. the brake and his-eyes were looking ahead. He was anxious to -stop ijhe >car. •%- rv ■_ ■' ; , '■■ --'j .-.■• : "

I Accused was- cross-examined, respecting his 'evidence m <the .lower court. He confirmed his -previous- "testimony, including the statement that; he kept his eyes on ithe. first, man : (the. cyclist).. He had,.his t j3yea on the. cyclist. . .-,. ; _.Tp-yMr Burnaa'd .- That..>r a s up to the point where they collided. >; -Then he applied his. brakes^ ; . After he had colUded,, with;. -'the cyclist and had passed hint heAwag looking ahead, but of course had lost -.his. .wits.v. '-..: . . , v Mr- .Burrxard, addressing, the... court, s,aid tha»t. there would.,b§ only one feeling ajnongst ' those ,yv)xq had heard the <ia?e tha,t t day, .a feeling pf, regret at the death of v deceased, a regret m which fhe- accused x participated. He had • already appeared before the coroner's inquiry, and had now to face the jury to answer whether' he was guilty qr not of killing deceased. What they had to discover was whether accused had failed to exercise that amount of care that was necessary by all persans using the road. They would have to find, with more than the -usual degree of; certainty, that he was guilty.- Proceeding, counsel dwelt upon the evidence respecting accused's ability to drive, the- par m Gisborne, and subipitted, that it was quite -reasonable for him to venture m Gladstone road.- On the question iof speed, counsel drew attention to.- the evidence of Mr . Williams' to the effect that- accused Ayas travelling about 8 miles an hour, he submitted that 'he had: only adopted the lpcal practice m regard, to the use of the road. The blame, of the first- acqident, he contended,, was ; equally sharqd. by accused and. the cyclist, and was the - result of a -pure misunderstanding that- brought about the second accident. He put it- to them that accused did not see deceased, arid did not know that l).e;had.;run over him. Having done his .best -^nd successfully avoided the first, a/cciderit, ]ivere /they to blame .accused (evfjnjf. they did not beliey.e Hr Hall's exphiniytrioit* about the cart obstv,uctinfe^the view), for a .sudden, loss . of fterve?' ; ■' : „■< >..' ' „. . ,( His Honor, m summing up, directed ihe : jury, /that the, rule qf the law was that- drivers of niptor cars were bound to exercise reasonable prudence" and diligence which vordinary .skilful drivers of ' !sv><sh machiiles wei-S accustomed to Use, but if through t ne want of^the use cjf .such reasonable skill a. person was killed x then accused, was culpably negligent. ••AJ*ropeeding,.' lus,; Honor said it Necessary tjiat.tl>ey should take the 4hole circumstances' into ■ consideration, and^f they had a. reaspnable doubt, as to <th,e proqf of. deceased's, failure to. exercise s,uch dvity they SvoulcT be^ unable /to' fiftd •a, -yerdictVpf nianslaughter. The allega-tions'inight-Tbe 1 ; cliyide.d 'into; three classes, an alleged breach" 9? duty, that he Ayas inisttlf ul , or if' : he wa^ .skilful . that he did not eWcj^e, thai amount of care that he should have done. Then there was the. /ailegatjon' of 'ilailing to sound h> horn, that he wa& on the wrong/side Of the road, he did not check bis speed, and /thai, he note take care to avoid \dangeiv.i He, thought they sjiotuld. Accept the, eYidence.of Mr WilUams.Jor the Xrpwn, ,\yhp r had deposed to hearing, the horn behind him. five six times. The,. next question was as to the car's .position.,^ Was f'tha'TpriflOnet complying- ) to . t,he ordinary, rule of tfie road? Gladstone road was a very wide one, but. } the /evidence showed that the drivers of vehicles customarily used one side •of the- road-.^ m. preference to " the. qther. w Hfc did not know 'whether there was : sl: by-Jaw <•'. prescribing ;lhe rule»'of the road, but. there -was a .general practice throughout the British .dominions r.espectingi;thevrule -of thevi-oad. They had?also^to consider \yhat vwas the cause ofthe accident. - His . Honpr, after weighing the evidence on- other-; aspects of ' the case, '^aid the jury would-.be justified m assuming that accused had applied his brakes as soon as he saw a collision was inevitable, ' They . had to consider if there was suflicTent. 1 excuse, and whether accused could; have-stop-ped the car before he struck the man he killed, before, he. lbgt his ; nerve; or whether m .striking the cyclist he lost all his nerye; whether the loss -p£ nerve was sufficient excuse for no knowledge of the ,act, ,, allpw.ing that he had no knowledge- of , the act— these '.were..questions for the jury and on which t)ie jury,; must, exercise its own «pmmb,n sense. It was. also for the jury, to say whether .the striking -of the- first ma.n oausjng a siiddeo, loss of nerve was sufficient legal exouse> - which,; brought^ them back to- the . main a& to whether there was on wna , not. :oulpable homicide Tho jury, of which Mr H. Prime vwas foremaar, retired at. 5;50- ]i.m., andi.ten minutes later returned, with a- verdict of "not guilty."- • < ..... .--.•' Accused was therefoVe di^cTiarged,

R+:-TRIAD GRANTED. Mr V: W.NolaH, Crown Prosecutor, moved for v re-trial : li) ; respect of the cjhaj'ge" of carnal knowledge- preferred against a native : youth, ,Pa Pati, m which Monday's jury diaagree,d. ' His Honor: I. see no reason, why a retrial should nof be' granted. The .casD. wfts set down, for 10 a.m. to-day- ■ • » < !..•,!; .„ ORPERv OF BUSINESS. Before rUing , his Honor discussed the order of. business . with the Bar.

It was stated that the case of Zachariah v. ■ Morrow would not come on .this session.' -,'. >• ■• < ■ - • ■ .■■■■■ '■.••• - ■

i; JVlr Bunjard said the case of Wilkinson v. Williamson resolved itself into a question ,qf, f ,law. He ...asked, .that the case of Aston v. Davidge.be t-aken this session Jf, possible. .His Honor, said he had to finish by Friday night. Mr,. Stock explained tlit} latter case might not come on, It was explained that the- case of-Bfpil v.; Taylor was. settleil, and that Clayton v. Clayton would not occuiiy the court very long. Regarding the case of Bayly v. Tucker. :> claim for. partition of a section at Kaiti, or. its sale, his Honpr

suid it would have to stand over until next session as the sale of the property would be affected by the war.

His Honor arranged the order for totiay's business, and set down the case nt" McEldowney v. Battimore for 10 a.m. on Thni'sday. '' '