FIREMAN CONVICTED

Grey River Argus, 22 February 1947, Page 4

FIREMAN CONVICTED

CAUSING BODILY HARM Papatoetoe Collision P.A. AUCKLAND, February 21, The fireman of the passenger train which collided with the stationary train at Papatoetoe on August 24, Desmond Samuel Higley, aged 22 (Mr T. Henry), was found guilty of causing actual bodily- harm to William Henry Gallagher,, under such circumstances that, if he had died, the accused would have been guilty of manslaughter.

A strong recommendation for mercy was made by the jury. The driver of the train, George Robert Pretoria Dickson, aged 46 (Mr Aekins), who was charged jointly with Illsley, was acquitted. Both accused were found not guilty on the count of culpable neglect of duty by unlawfully and wilfully failing to observe a railway signal, thereby endangering the safety of passengers on the train. "If you believe Dickson when he says he got a'yellow from Illsley you cannot convict Dickson,” declared Mr Aekins, counsel for Dickson, addressing the jury in the Supreme Court to-day in the case of George Dickson engine driver, and Desmond Illsley fireman, who were facing criminal charges arising from a collision between the train of which they were the crew and a stationary train at Papatoetoe station on August 24.

Counsel said the evidence showed that the automatic signalling system was not infallible.

Mr Henry, appearing for Illsley, said the Crown evidence suggested that the men took a type of risk which no human would take. Counsel submitted that either the signal indication was wrong or Illsley had been affected by a former head injury and gave a wrong indication, as Dickson had .stated.

Mr Meredith, for the Crown, said the issue was whether the home signal was read and whether the train crew went past it.

Illsley stated in evidence that last April he had been injured in a motor cycle accident, and had been unconscious for five hours. On the day of the train accident, he had built up a fire, and as the train was passing Middlemore he began to sit down. He could not recollect sitting down, seeing signals No. 1003 and No. 2'B, or a stationary train at the Papatoetoe railway station. He did not recall the impact between the two trains. Irregularities which had occurred in the signalling equipment were described by a number of engine drivers and firemen called by the defence. After counsel had addressed the jury, His Honour summed up. When men undertook the duty of being the driver and fireman of a train, they assumed legal responsibility for taking reasonable precautions and reasonable care, said His Honour. Very largely, the jury was fixing a standard of the care under which men in such circumstances were bound to take. That standard was governed by what a reasonably prudent man would have done. A continuous and protracted view of the home signal that Illsley had, was denied to Dickson, added His Honour. That was an aspect of the case that appeared against Illsley. He added: “I don’t see how either could be convicted on the second count. The Crown must prove that they deliberately and wilfully went past the signal, and I can see no evidence of wilfulness”.

After a. retirement of over two hours, the jury returned with its verdict.

Dickson was discharged, and Illsley was remanded for sentence on Thursday, being released on bail.