NEWMARKET FATALITY.

New Zealand Herald, Volume LXIII, Issue 19320, 6 May 1926, Page 11

NEWMARKET FATALITY.

NEGLIGENCE CHARGE FAILS. WOMAN DRIVER ACQUITTED. IMPORTANT ISSUE INVOLVED* After being refused leave to find that the accused was incompetent, a jury in the Supreme Court yesterday acquitted Margaret Ester Rogers, a married woman, who was charged with having negligently driven a motor-car and thereby having caused the death of a pedestrian. lhe case arose out of an accident in Broadway, Newmarket, on January 8, when Mrs. Thorburn, aged 68, was knocked down while crossing the roadway to board a stationary tramcar. One wheel of Mrs. Rogers' car passed over her, and she died of shock the same night. The case was heard before Mr. Justice Stringer. Mr. V. R. Meredith appeared for the Crown and Mr. R. McYeagh for the defence. At her counsel's request the accused, whose health had been indifferent, was allowed a seat beside him. Mr. Meredith, in opening his case, said that in Newmarket, as in Auckland City, motor drivers were forbidden by by-law from driving past tramcars which had stopped to pick up and let down passengers. The accident occurred outside Teed's pharmacy, where there was no safety zone. A tram had stopped, some passengers had got off and others had entered. No signal to proceed had, been given. * The conductor had :>een Mrs. Thorburn, who was standing on the kerb, and was waiting for her. She had stepped into the roadway when the accused's car came into the space between the tram and the kerb and knocked her down. One wheel passed over her. She was taken to the hospital, and afterwards died. Explanation by Accused. Mrs. Rogers, in a statement to the police, had stated that she approached Broadway from Remuera Road in low gear. Thinking that the tramcar was moving, she did not stop. Deceased walked out from the footpath at an angle, ; as she (Mrs. Rogers) thought, to cross behind the tram. The woman hesitated, and though Mrs. Rogers turned the car to the left the right front wheel knocked deceased down. If she had gone straight on there would have been no collision.

The accused, said Mr. Meredith, must have shown want of care in coming to the conclusion that the tram was moving. Moreover, if her car was in low geaTr and moving slowly, the slightest touch upon the brake would have stopped it after the power had been cut off. Either she must have been travelling faster than she said, or she must have been very incompetent and unfit to drive under difficult conditions.

The jury was faced with an unpleasant duty, continued Mr. Meredith, but it must remember that the law made no distinction between men and women in such cases. It made no difference to the victim of an accident, or to his or her family, whether tho driver of a car was a man or a woman.

Counsel submitted that amid the serious growth of motor accidents the public relied upon juries to set a standard : of care on the part of motorists. The evidence for the Crown was similar to that given in the lower court and bore out counsel's opening remarks. It was shown that Mrs. Thorburn's death was due to shock, and that thfe only marks of violence were two abrasions on the face. The conductor of the tramcar stated that deceased caught his eye and he waited for her to board the tram before signalling the motorman to proceed. Other evidence was that the motor-car was going at a walking pace, and that it stopped with one wheel on the footpath. Dr. Alexander Kinder, called by Mr. McVeagh, stated that Mrs. Thorburn was frail, old beyond her years, witn defective eyesight, nervous, and easily excited. She would be certain to lose her head in an emergency. The Victim's Behaviour. Addressing the jury, Mr. McVeagh remarked that the mere fact of breaking a by-law was not a proof of negligence. He hoped to be able to show that Mrs. Rogers had driven her car with great care. The evidence indicated that if Mrs. Thorburn had walked on she would, have been safe, but that in fact she faltered and walked backward into the car. Mrs. Rogers, who was driving very slowly, did at the last moment, the only possible thing. She swung to the left and actually ran the near wheel on to the footpath. It was notoriously difficult to tell from a moving motor-car whether a traracar in front was moving or not. The jury would have to determine whether the accident was due ultimately to negligence by Mrs. Rogers or to the deceased's act in stepping backward. He would submit that, there was no negligence on Mi's. Rogers part that could be deemed the final causa of the accident. _ . Mr. Meredith, in reply, said that th# evidence showed that when Mrs. Thorburn stepped off the footpath Mrs. Rogers, was far enough away to have stopped her car at, a safe distance. Deceased was entitled to expect that no motor car would pass her. If the jury considered that Mrs. Rogers had improperly taken a rtsfc in driving where she had no right to they should find against he», whatever their feelings might be. The Judge's Summing Up. Hi* Honor remarked that clearly the accused had broken the by-law, but the mere breach of a by-law did not justifv a finding of negligence. However, it did enter into the question, because the bylaw was a measure to prevent accidents in a circumstance in which thev were specially liable to occur. Counsel • for the defence* had suggested that the accident had been due to the victim's lack of judgment in an emergency. He could not agree that this was a reasonable way of put ting the matter before the jury. If the accused had had th<> slightest ground for believing that the tramcar had he"un to move, and if iii that belief she had passed it. she could not be deemed negligent in doing so. The car. in fact, was stationary, and the accused had no cround for believing that it was .moving. Had she the right to take the risk of passing between the old lady aud the kerb, or ought she rot to have stopped ? His Honor, in conclusion, said the case, was an important one, because the standard of care required in such circumstances must be maintained. After 45 minutes the jury returned o ask whether a verdict of incompetence would be accepted. His Honor stated that the only must be on the question of negl g en i e " The accused must he presumed to reasonably competent as a f riv,?l ' ; rtl w es The jury retired again, aind ten:nufl later brought in a verdict of n- fe Accused was discharged. . J^j