DRIVER CHARGED.

Auckland Star, Volume LXX, Issue 31, 7 February 1939, Page 8

DRIVER CHARGED.

DEATH OF WOMAN. GREAT SOUTH ROAD SMASH. JURY VISITS SCENE. After the jury had visited the scene of the accident this morning, the trial of Herbert Kane, taxi driver, aged .'57. on a charge of negligent driving, thereby causing the death of Mrs. Elisabeth Muir, of Papatoetoe, on August 20, lf).'18, wa»i continued before his Honor, Mr. Justice Fair, in the Supreme Court. Kane, who pleaded not guiltyf was represented by Mr. T. Henry, instructed by Mr. Stubbs. The Crown's case was conducted by Mr. V. R. Meredith, Crown Prosecutor. The accident occurred at 5 p.m. on August 20, on the Great South Road just south of the Market Rtmd crossing. Mm. Muir was driving a car south, ami it was alleged by the Crown that accimed drove in between Mrs. Muir's car and a traincur, and then cut across in front of Mm. Muir's car, so that his rear bumper caught the front bum|»er of deceased's car. As a result,, the Crown alleged, Mrs. Muir's car was thrown out of control and travelled along the footpath until it struck a telegraph pole, with fatal results Sister's Evidence. Continuing her evidence yesterday afternoon, Mrs. Barbara Kirkbridge, a sister of Mrs. Muir, and a passenger in the car at the time of the accident, said she saw a car cut in between them and a tram and hit the front of their car, which was lifted on to the big pole in front of them. Evidence was given by the conductor of the tram which wa< at the sccne of the accident, William Henry Binglev, who said he heard the crash of Mrs. Muir's ear as it struck the pole. He saw the taxi veer in gradually to the right until it struck his tram, but no damage was done to the tram. Constable W. E. Street said the accused told him he was forced into the tramcar on account of the other car accelerating as he was passing it. When the rase resumed to-day Mr. Meredith did not address the jury. Defence Plea. Mr. nenry argued that the Crown's ensp was so full of contradictory evidence on an incident that had occurred in a brief space of time that there was every reason why accused should be discharged. All the evidence adduced from nil examination of the cars sustained the belief that any impact that occurred must have lieen very slight indeed. He argued that there was plenty of time for Mrs. Muir to recover full control of her car and remain on the road. It was too much for the Crown to expect the jury to accept the mass of contradictions put forward by witnesses, said Mr. Henry, in pointing out that, in connection with distance, a police witness who had spoke of 150 yards in evidence in the Lower Court had amended his idea considerably at the Supreme Court hearing.

In summing tip, his Honor said the Crown had divided its contentions into three sections. In the first place it argued that accused had, by cutting in ahead of Mrs. Muir's car, been guilty of negligence; or by driving too close to her; or, in the third place, by driving so near to her in an attempt to get ahead, such negligence had been a contributory cause of her death. There Was no evidence to show that Kane was driving rerklesely at the time he entered Great South Road, even though he had inconvenienced another driver who had been a witness in the case. There was no question that a collision in some form or other had occurred, and that it had not occurred because Mrs. Muir had •werved in any way or had been careless in driving. In that ra«e there were only two alternatives—Jthat the accident had l>een unavoidable or that the accident occurred through Kane's careless driving. It was not necessarily Mrs. Muir's fault, either, that she did not regain control before her car struck the telegraph pole. The jury retired to consider its verdict at mid-day.