TEAMCAR FATALITY.

New Zealand Herald, Volume XLVI, Issue 14158, 6 September 1909, Page 6

TEAMCAR FATALITY.

j CHARGE OF MANSLAUGHTER. CONDUCTOR FOUND GUILTY. MOTORMAN DISCHARGED. • The hearing was, continued at the Supreme Court on Saturday, before Mr. Justice Edwards and a jury, of the charge of manslaughter preferred against Herbert Birketb and Charles Halley, who were acting as conductor and motorman respectively when an elderly passenger named Anna Horsnell lost her life, at Onehunga, on June 10 last. Mr. Prendergast defended the accused Birketb, and Mr. Reed appeared for Halley. CASE FOR THE MOTORMAN. Mr. Reed asked His Honor whether ho considered there was any evidence to go to the jury so far as the charge against Halley was concerned. He would submit that thee was not sufficient to create criminal liability, nor was there evidence to show that the fatality was the result of the stalling of the car on the voice signal instead of by the bell signal. His Honor : Unless it was proved to j have been rung in sufficient time to have given Mrs. Horsnell warning. However, in the case against Halley, I do not suppose that the jury would think him responsible. Mr. Tole ; I think this is a case that should be left for the discrimination of the jury. His Honor : I don't think, Mr. Reed, that I can say there is sufficient evidence against Halley. What does the jury think ? The Foreman (after consulting jurors) : Wo consider there is no case against the motorman, and find him not guilty. His Honor (to the accused Halley) : Prisoner, you are discharged. CONDUCTOR'S RESPONSIBILITY. Mr. Prendergast, in addressing the jury on behalf of the accused Birkett, maintained that in order to support such a charge it must be proved that, there had been gross and improper negligence. A distinction must also be drawn between negligence which rendered a person liable to a civil action and negligence which involved liability to criminal prosecution. Counsel reviewed the facts as disclosed by the evidence for the prosecution. He pointed out that upon stopping at Cap-tain-street and seeing a male passenger alight from the front of the car the conductor assumed that he was the person who had rung the bell. Having then looked round the side of the car and seen no other passengers waiting to get off, he gave the signal to continue on. The fact that he took the precaution of looking round the car clearly showed that he was attentive to his duty. Counsel submitted that the failure of the conductor to ring the bell did not contribute to the accident in the present case. He pointed out that when picked up the deceased lady was lying in exactly the opposite position to that which a person would naturally fall as the result of a forward jerk. With regard to the conductor smoking a cigarette, that circumstance could not have a bearing upon the result, nor could the fact that he was on the front, platform at the time of the accident. His Honor: I shall tell the jury that a mere breach of this rule was nothing. Mr. Prendergast said that while general sympathy would be felt with the husband and relatives of the late Mrs. Horsnell, possibly no one regretted it as much as the conductor, who was a man with the whole of his adult life before him. He trusted the jury would return a verdict of ''not guilty." JUDGE'S SUMMING UP. In directing the jury, His Honor said that the prisoner was apparently a respectable young man, but however much they might feel for him in his present, position," jury and judge were there to discharge their duty, and it was a very serious duty, because the matter involved the safety "of hundreds of thousands of persons who travelled on tramcars. The question for them to decide was, Did this young "man exercise the reasonable care which the law and Common sense demanded? It was shown that before restarting at Captain-street he looked round one, side of the car, but not round the other, also that if he had looked through the car he would have seen the ladies waiting to alight. Had he done so the accident would never have occurred. His signal to the motorman was given by word of mouth, and not by the bell. Tht jury were asked by their verdict to say whether the conductor, once a passenger had alighted from his car at a stopping-place, was justified in re-starting the car without looking out to see it' other persons were waiting to get off,, In His Honor's opinion the ringing of the conductor's bell was not merely a signal to the motorman but it was a protection to the public. The fact that the motorman was smoking a cigarette would, of course, not render him liable to such proceedings, but this was most probably the cause of his being on the front platform, instead of attending to his duty elsewhere. Something had been said of the position in which the unfortunate woman was found on the roadway, but this did not affect the matter in the least, for it must be manifest that she fell because of the starting of the car. If tho jury thought that the conductor used reasonable precautions, they _ were justified in discharging him, but if not they must return their verdict r.ccordingly, no matter what the consequence or how painful the duty. The subsequent responsibility did not "rest with the jury. His Honor wished that it did, for thsre was no duty more responsible or more unpleasant, and none which a judge would not willingly leave to some other tribunal if it were possible. THE JURY'S VERDICT. After an adjournment of nearly an hour the jury returner] a verdict of "guilty," with a recommendation to clemency. Accused was ordered to come up for sentence on Wednesday morning.