HAMMERLY’S APPEAL

Evening Star, Issue 19633, 12 August 1927, Page 5

HAMMERLY’S APPEAL

DISALLOWED BY JUDGE liis Honor Mr Justice Sim thil morning gave his decision in the case in which John Frederick Hammcrly appealed against his conviction in tbo Police Court for negligent driving of a motor car. His Honor said the appellant was convicted by Mr Bartholomew, stipendiary magistrate at Dunedin, .of the offence of driving a motor vehicle on the Main South road, Dunedin, in a manner which, having regard to all the circumstances of the case, was dangerous to the public. The appellant brought a general appeal from tins decision, and the ease had been reheard before His Honor. The appellant was convicted under section 28 of the Motor Vehicles Act, 1921, which enacts that every person commits an offence who recklessly or negligently drives a motor vehicle on any road, street, or other place to which the public have access, whether as of right or not, or who drives any such vehicle at a speed or in a manner which, having regard to all the circumstances of the case, is or might bo dangerous j.o the public or_ to any person. It had been decided in England under the corresponding section of the Motor Car Act, 1903 that, although driving at a dangerous speed was an olfcncc in itself, evidence of excessive speed was admissible on a charge of driving in a dangerous manner. In the present case it had not been made out that the speed at which the appellant was driving was in itself excessive, and the case made against the appellant by the witnesses called by the respondent vas that he was driving on the wrong side of tiio road. The principal witnesses were the three hoys—Biddle, King, and Hopewell. f They were riding on bicycles on their own side of the road between the tootpath and the tramway rails. They wore travelling north, and the appellant was travelling south. They all said that the appellant came round the bend of the road on their side of the road. 'They thought that the car would be over them if they did not get out of the way. Hopewell and King wcik' lor the gutter. Biddle said that there was not room lor him to do.the same, and ho tinned out to his right. He tvas struck by the car and was thrown olf his bicycle. The witness Nelson, who was standing in the .street when the collision look place, saw the cat come round the bend, “‘flic car uai coming Ironi tbe north, said Nelson, "at i"last Sliced, The car was on its wrong side. The car did not seem to try to avoid the hoys until it was right on top ol them, it then turned to the left, and at the same tunc otic of the bovs turned to the right.” r lho following is the appellant’s evidence on the subject:—“ As 1 approached the corner 1 saw a motor van standing outside Maddigan’.s shop, and 1 passed it on my left side. As 1 swung round tiio corner 1 saw throe hoys coming down, meeting me. They wore just about abreast and f noticed that tiio boy nearest the middle of the road had no light on his bike. After havin''- passed the motor van m front of Maddigan’s store I was trviu,r to get back to my right side of the road, hut before I could get back the boy Kiddle bis bike over to my side of the road, and struck my motor on the lelt-hamt side of the radiator and mudguard. The appellant made some measurements after the collision. According to these the van in Iront of Maddigan s stoic was 3ft 3in from the kerb, and the van was fill wide. The appellant’s own van is 6ft 2in wide, and the road is 47ft wide. The appellant reckoned that he was about JSit Gin from the lefthand kerb when the impact took p ace, and be claimed Hint be would htill havo 6ft to £0 before lie would be on tbo wrong .side. “I iuu not .satisfied Hint the prosenco of tbo van in front of Madden's store made it nc-ccs'-ary for the appellant to travel on the wronu side ol tbo road at nil,” said His ilbnor. “To travel on the wrong side ol tiio road h not nccofiwarily an offence. Whether it is so or not depends on the cireinnstanccs in which the driving i.s done. Jbe appcl* Pint appeared to think tiiat the whole case turned on the question of where exactly his car was when tiio collision took place. But that i.s not so. Tho appellant claimed that he was not to blame for the collision. It may be conceded to him that tho collision would probnblv not have taken place if the bov Biddle had not turned out to his right, hut had kept straight on. But tiio boy was placed in a difficulty by reason of the appellant being on the wrong side of the road, and apparently being about to drive over tine hoys, and the appellant i.s not absolved from blame because the hoy took what turned out to be the wrong course. The witness Nelson was in a good position to observe what took place, and Ids description ought to he accepted, I think, as substantially correct, liis evidence makes it clear* that tho appellant was ‘ cutting the corner,’ and that the operation as he pertormed it was dangerous to the public. I think, therefore, that the appellant was propcrtly convicted. The conviction i- affirmed, and the appeal dismissed with costs (£5 ss) and witnesses’ expenses, to bo fixed by tho registrar.” At the hearing of the appeal appellant done!acted his own case, and Mr F. B. Adams (Crown Prosecutor) geared on the other side.