Magistrate’s Court Woman Driver Is Acquitted Of Fatal Negligence

Press, Volume XCVII, Issue 28536, 15 March 1958, Page 15

Magistrate’s Court Woman Driver Is Acquitted Of Fatal Negligence

Daphne Iris Loveday was charged in the Magistrate’s Court yesterday with negligently driving a motor-car in Beach road, Kaiapoi, on the afternoon of January 17and causing the death of Agnes Uren. She pleaded not guilty and after the hearing of police evidence and an address by counsel the charge was dismissed. Mr L. N. Ritchie, S.M. was on the Bench. Senior Detective-Sergeant J. B. McLean prosecuted. The deiendant was represented by Mr E. S. Bowie. Senior Detective-Sergeant McLean said that the dead woman was the defendant's mother. The accident in Beach road also known as Poplar avenue, which was a straight highway, had apparently occurred when a cushion was passed from the back seat of the car to the front seat while the car was being driven. Dr. C. W. Free, a house surgeon at the Christchurch Public Hospital, said he had attended Mrs Uren when she was brought to the hospital. Her death was “most likely” a result of the accident. Mr Bowie: But it is possible she died from other causes? ) The witness: It is possible. Dr. C. T. B. Pearson, a pathologist, said he had carried out a post-mortem examination on Mrs Uren. Cross-examined, he said he did not think it possible for Mrs Uren to have died from any other cause but the accident. Dawn Irene Loveday, the 14-year-old daughter of the defendent, said she and a girl friend, | Irene Ellis, had been in the back seat of the motor-car before the accident. The witness was sitting behind her grandmother, who was in the front passenger seat beside the defendant. The car was being driven about 20 miles an hour. It was drizzling at the time. Mrs Uren, a cripple, was dozing. The defendant asked the witness to hand over a cushion and put it behind Mrs Uren. “I put it on top of the back of the seat between my mother and my grandmother, and I don’t know what happened after that,” the witness said.

At this stage Irene Ellis had been lying down on the back seat with her head on the witness’s lap. There was a crash. The witness knew something had been hit, but did not know what. Witness said she did not notice If her mother did anything when the cushion was passed across. She did not recall anything being said by her njother did not remember any variation in the movement of the car. To Mr Bowie, the witness said that Mrs Uren was paralysed down one side and very frail. Her mother was intensely fond of Mrs Uren and showed her every consideration. If her girl friend had not been in the position she was she would have placed the cushion behind Mrs Uren and not on top of the seat. Constable G. V. Williamson, who went to the accident, said the car was hard against a tree on the side of the road. Marks showing the track of the car along the verge of the road to the tree were 80 feet in length. Cross examined, th 6 witness said that Beach road was narrow with not much room for cars to pass. A good deal • of traffic could be expected on New Year’s Day. Constable W. M. Ramage, produced photographs of the scene of the accident. To Mr Bowie, he said the tree which the defendant’s car crashed into was out of line with’ and nearer the roadway than the other trees on that side of Beach road. Constable G. D. Swan said the tree was three feet from the road edge. In a statement to the police after the accident the defendant said she wanted the cushion to make Mrs Uren, who was 81, more comfortable. She intended to reach over and push the cushion in place, but whether she had done that or not she could not remember. She did not think she had touched the cushion when the accident happened. . Addressing the court, Mr Bowie said the police had not discharged the burden of proof which lay heavily on them. There was no evidence whatever of the cause of the accident. There was an explanation which was obviously reconstruction and assumption but not a line of evidence to show any act or omission by the defendant. The defendant was said to have been travelling 20 miles an hour at which speed it would have taken 2.ssec to cover 80ft of the road to the tree, Mr Bowie continued. This was a long time for a racing driver but “almost instantaneous” for a woman. There had been a conflict of duty. The maternal instinct was strong and would direct the defendant to the immediate comfort of her mother, but attention momentarily wavering could not be construed as negligence. The distance from the side of the roadway was only 3ft to the tree. “The law does not require of any driver that' he should exhibit perfect presence of mind and be absolutely correct in every detail,” said the Magistrate. “The law does require the act of a prudent driver in similar circumstances.” The Magistrate said that a driver might be excused more readily for an error of judgment in a penal case than in a civil case, and his decision in a civil case might have been different. There was a doubt in his mind, and the defendant must have the benefit of it. The Magistrate said that although he was dismissing the charge he wished to make it clear that the prosecution of the police had been, in *the circumstances, quite proper. DRUNKENNESS Remus Gordon Lilley, a labourer, of New Brighton, was charged that on March 13 he was found drunk in Moorhouse avenue, having twice in the previous six months been convicted of drunkenness in a public place. Lilley pleaded guilty and was sentenced to imprisonment for 14 da; s. Sergeant V. F. Townshend, prosecuting, said that Lilley had many previous convictions, and was a problem. The Magistrate asked the accused if he was “Remus” or his brother “Romulus,, who has gone to the Supreme Court.” The accused said he was Remus. He denied having been sent to Rotofoa Island for alcoholics.

“It looks as if you are going there,” said the Magistrate. “You cannot be allowed to go on like this. You are a nuisance not only

to yourself but also to your neighbours and a bigger nuisance to the police. You will have to be careful not to follow your brother out he has apparently come back and . . The Magistrate remanded the accused m custody of the Salvation Army for investigation of possible committal to Roto-roa Island. Sergeant Townshend: He has already been to the island. The Magistrate (to the accused): I thought you told me you had not been there?—Yes. Don't you remember?—Yes. How long did you stay there?— Seven months. “That would appear to be right from the conviction list because you came up immediately after you got out,” the Magistrate said. “I think it is useless sending him back.” An officer of the Salvation Army said the army would probably be prepared to give the accused another chance. When the accused appeared before the Court in the afternoon the Magistrate said the Salvation Army had refused to take him at Roto-roa Island, and there was no alternative to gaol. GAOL FOR THEFT Harold Morris James Smither appeared for sentence on 10 charges of theft. He was convicted and sentenced to a total of two years’ imprisonment. “For an able-bodied man to steal from a girl or woman shows just how low you have fallen,” the Magistrate said. “You have qualified to be sent to the Supreme Court for preventive detention. Next time you .may well be sent. This is your last chance. If there be a next time it may be 14 years.” ’ An order was iqade for the return of property recovered. FINED FOR THEFT • lan Clyde Pooley, aged 24, was convicted and fined £l5 when he appeared for sentence on a charge of stealing £ll 15s 4d at Wellington in December. The Magistrate also admitted the accused to probation for 12 month? and ordered him to make restitution of the money stolen. MENTAL COMMITTAL A man whose name was ordered not to be published was charged with carrying a rifle and ammunition except for some lawful and sufficient purpose. He appeared on a Bench warrant for failing to appear, previously to answer the charge. The Magistrate said that in view of a medical report he would order the accused to be removed to a mental hospital for observation. CHARGE DISMISSED Victor Emanuel Bergamini, an engineer, pleaded not guilty to a charge that on October 1, at Christchurch, he used a motorvehicle without due care and attention. The charge was dismissed. Sergeant H. McLean prosecuted. Mr H. S. Thomas represented the defendant. Mervyn John Hammett gave evidence that about 7.30 p.m. on October 31 he was driving a car east on Cashel street and when approaching the Colombo street intersection he collided with a car driven by the defendant, who had pulled out from the kerb. He had seen no indication given by the defendant to signal intention to pull out. His speed must have been 20 miles an hour. He had speeded up five miles an hour because he wished to get across the intersection before the lights changed from green. Cross-examined, the witness said he had no driver’s licence on the day of the collision. He had been failed in a licence test three weeks be£ore, but passed a test the day after the collision. The witness said he had been sure of his speeds because he kept his eyes “glued to the speedo 1 ,” at least his left eye on the speedometer and his right eye on the road. He never saw the defendant extend an arm before pulling out, and if an independent witness said that the defendant had extended, an arm he would be wrong. It would be false to say that he was trying to get across against the red light. In a statement made to the police after the accident and produced in court, Bergamini said he had put his arm out and was at a loss to know why the accident occurred. In his statement, Bergamini said he heard Hammett say: “I did not stop because I was anxious to get over while the traffic lights were green.” Called by the defence, Clifford Vincent Atyeo said he had been waiting in his car at the Cashel street intersection with Colombo street to go through to the Square. He saw the defendant, who had his hand out, but had stopped apparently waiting for favourable lights. The green light went on in Colombo street and he moved north and then he saw Hammett on his left “at speed.” Hammett hrt the defendant, who was “parked.” His speed near the intersection was estimated at between 25 and 30 miles an hour. CHARGE REDUCED Kevin John Reilly, aged 27 (Mr R. J. de Goldi) pleaded not guilty to a charge of driving a vehicle in a dangerous manner in Moorhouse avenue on February 1. After hearing police evidence and submissions by counsel the Magistrate reduced the charge to one of careless driving. The deiendant pleaded guilty to this charge and was convicted and fined £3. Reilly also pleaded guilty to failing to stop after an accident, and was convicted and fined £5. TRAFFIC OFFENCES On charges laid by the police, the following fines were imposed. Careless driving: Janos Redai, £4 (L plate breach, £3); John Ernest Spencer, £4 (failing to stop, £5, no warrant of fitness, £4). Failing to give way: Harold Dawrant, £4; Neil Leslie Hey, ordered to pay costs; Francis Kane, £5; Miriam Alice Watkins, £4; Levin Maurice Whittaker, £2 (no warrant of fitness, ordered to pay costs). Driving at such a speed that he was unable to stop within the length of clear roadway visible ahead: Donald Charles Emms, £4 No drivers licence: Terrance Andrew Moyse, £2 (no warrant of fitness, £2), No warrant of fitness: Brian Adams, £1; Daniel Connell, £2.