CASE DISMISSED

Ashburton Guardian, Volume 53, Issue 15, 28 October 1932, Page 6

CASE DISMISSED

ALLEGED DANGEROUS DRIVING. CHARGE FOLLOWS CAPSIZE. QUESTION OF DEFINITION. On, a technical point, a charge against a Dunedin motorist was disnnssed by Mr 0. K. Orr Walker, S.M., in the Ashburton Magistrate's Court this morning. There were 70 civil cases and two police cases on the list, but only a few were finalised. Morris N. West, of Dunedin, who was charged with having driven a motor-car in a dangerous manner on the Main South Road, did not appear.

Sergeant W. Almond stated that while travelling at 40 miles an hour near Hinds, the car capsized in loose shingle and two of the occupants Avere injured and sent to hospital. Constable J. Best produced a statement given by defendant admitting the speed of 40 miles an hour. He said the .sudden application of the brakes caused the car to capsize. Witness said the injured people were in the hospital only a few days. Constable R. P. Chibnall detailed the scene of the accident and said there was nothing to cause a car to overturn at 40 miles an hour. The road was straight. The car was badly damaged, the top being almost torn off. The Magistrate said there was hardly evidence that the car had been driven in a dangerous manner. Finding the car skidding in shingle the defendant had put his brakes on, the worst thing he could have done. It might have been an error of judgment, but it was hardly dangerous driving. It might be that defendant had been looking back at the time, hut there was no evidence of his having done so. The case was dismissed.

The Magistrate said that had defendant been charged with driving "at a speed likely to be dangerous," the position then might have been different.

Theft of Eggs. Alfred Cummerfield was charged with having stolen a number of hen eggs, valued at one shilling. He pleaded guilty. The police stated that accused was caught as a result of a watch kept on a poultry yard from which the eggs had been stolen on frequent occasions. He was sober at the time he was apprehended. Accused said that had been the first time he had interfered with anyone*s property. Accused was convicted and ordered to come up for sentence if called upon in six months. He was ordered to pay one shilling to the owner of the eggs and to take out a prohibition order. Civil Business. Judgment for plaintiff by default was giyen in each of the following cases:— Commissioner of Taxes v. T. E. Palmer, £1 19s 9d, with 8s costs; H. E. Clark v. A. R. Hunter, £5 12s 6d, with £1 lis Gd costs; Ashburton County Council v. William Rushton, £lO 14s Id, with £2 16s costs; Same v. F. W. Clark, £5 lis Bd, with £i 12s 6d costs; Same v. William Andrew M'cDonald, £5 7s sd, with £1 12s 6d costs; Same v. G. Chambers, 16s 3d, with £1 10s, costs;-Same v. Charles Joli, £4 18s 6d, with £1 fi*s6d costs; Ashburton; Hospital Board v. Jasper West Coinyns, £2 10s, with £1 5s 6d costs; Same v. Brian O'Connor, £6 10s 6d, with'£l 10s Gd costs.

Claim for Fencing. In a defended action, Alexander N. McMillan, and Hilda Maud McMillan proceeded against Kate Doherty, claiming £2O 17s Id under the Fencing Act for half cost of a dividing fence. Mr V. W. Russell appeared for plaintiffs and Mr W. H. Woods appeared for defendant.

Mr Woods said the defence was hased on the inadequacy of the fence. Mr Russell .said defendant's property ran down the centre of the plaintiffs' property, and as a result of the bad fence, some of plaintiffs' sheep and other stock continually broke into defendant's property. At one time defendant had sent 300 of the plaintiffs' sheep to the pound. The position had become untenable.

Hilda Maud McMillan, one of the plaintiffs, detailed the fencing between the two properties, and the fence erected and on which the claim was based. To Mr Woods: The stakes put into the fence were of bluegum and were properly fixed but had become slack since the rain. The wires were tight enough to keep sheep from getting through. Mr Doherty had started to erect a fence, not on the fence line, after the other fence had been started. The fence now on the property had stopped all stock breaking loose. Alexander McMillan, the other plaintiff, stated that he put in wattle, bluegum and niacroearpa posts and bluegum .stakes. They were hardwood. There were six plain, wires and one barbed wire in the fence. Witness added that he had no standards in the fence. He used bluegum lor stakes.

The Magistrate said the notice served by plaintiff's referred to posts and standards but made no mention of stakes.

Witness said the stakes were nine feet apart, and the posts were some 50'yards apart and others 100 yards apart. To Mr Woods: He considered bluegum wood was hardwood. The fence was intended to be a permanent one. The stakes were driven, from six inches to a foot into the ground. He did hot know how high above the ground they were. The sheep had been getting through the fence lately, but, only since the last rain. M'.r Doherty had not made any arrangement with witness about putting up a. fence. A. C. Shaw, stock auctioneer, stated that the fence-line had previously been covered by gorse. This was cleared and the fence put up. Mr Woods applied for a non-suit on

the grounds that the fence erected was not in keeping with the notice served oil' defendant. Mr Russell claimed that plaintiffs had substantially complied with their notice, as owing to the nature of the ground it was impossible to fully carry wit. their intention. The fence erected was a sound, stock-proof fence. The Magistrate said the Fencing Acr had to be strictly complied with. Plaintiffs had given notice regarding a certain fence, but they had not put up a fence in compliance with their notice. It was a case of being penny wise and pound foolish in not going to a solicitor in the first place. He would non-suit plaintiffs, but would not allow costs to defendant, who had got a good deal more than she was entitled to. '