MOTORIST ON TRIAL.

New Zealand Herald, Volume LXVI, Issue 20254, 14 May 1929, Page 11

MOTORIST ON TRIAL.

DEATH OF YOUNG GIRL.

NEGLIGENT DRIVING CHARGE

CASE FOR THE PROSECUTION.

NO EVIDENCE FOR DEFENCE.

The trial of Francis Clarence Beresford Power, apprentice jeweller, aged 18 (Mr. Leary), on a charge of negligently driving a motor-car in Lucerne Road, Remucra, and causing the death of Diana Victoria Menzies, the four-year-old daughter of Mr. and Mrs. A. G. Menzies, was opened before Mr. Justice Herdman in tho Supreme Court yesterday. "A pedestrian has a perfect right to cress a road and a motorist has not a free right, of tho highway," Mr. Meredith said in outlining evidence for the Crown. "If a pedestrian elects to cross a road the motorist has no right to run him down because he. is on the road at tho same time. Since tho advent of motor-cars on the highways the mortality rate has increased to an alarming extent. It is difficult to find a day in which some life is nofc lost as the result of- a motor accident."

It was because of tho alarming increase in fatal motor accidents that juries should return verdicts without prejudice in cases in which drivers were charged with negligence, added Mr. Meredith. Sympathy for accused or those bereaved should not enter into consideration of the facts at aIL

Accused was driving down Lucerne Road with a woman friend when the accident occurred, Mr. Meredith said. Tho child who was killed was with her sister, Barbara Menzies, aged five, and the two were crossing the road to join some other young girls on the opposite side when the rnotor-car driven by accused knocked deceased dowu. It was suggested tho car was travelling fairly fast, and that accused had nothing to obstruct his view. However, it was contended for tho defence that a hawker's cart was alongside tho footpath near the children, although other witnesses stated the road was quite clear. A noticeable fact was that accused did not stop after knocking the child down. Condition of the Car. The car was later examined by the police and it was found that tho hand-brake was useless, while the foot-bi'3ke was defective, and tho horn would not sound. It appeared that the contention that a hawker's cart was on the road was an afterthought. Mr. Leary objected strongly to this statement. The Crown prosecutor was questioning the evidence of a witness who was to be called for the prosecution. "Mr. Meredith has violated one of the fundamental principles of law," Mr. Leary said. "I consider he has opened his case in a grossly improper manner." His Honor: Where are your authorities ? Mr. Leary : I will be pleased to secure authorities on the point if you will excuse me for a moment.

His Honor: Well, you had better go and get them. Mr. Leary was about to leave the courtroom when His Honor advised Mr. Meredith to continue his remarks. Counsel returned, again objecting to Mr. Meredith's remarks.

His Honor said Mr. Meredith evidently intended to call evidence to show the witness referred to was mistaken. The jury was entitled to know all the facts. '•'Please let us get on with the case. Mr. Learv," he said. "You are only trifling." "If Your Honor rules to that effect 1 must submit," Mr. Leary said, resuming his seat.j

Evidence of Children. aged 13, said she was standing on the opposite side of the road to deceased and lier sister Barbara, just before; the accident. Barbara ran across to witness and deceased followed, but deceased had only reached the centre of the road when a flve-seater motor-car coming .down the road struck the child and passed over her. The vehicle swerved slightly to the right and continued on its course. There were no other vehicles in the vicinity at the time, and there was a clear view of the road for some distance in both directions. After striking (he child the car did not slacken speed at all. Jn witness' opinion it was travelling at about 30 or 40 miles an hour. Harold Cuthbert. Wiles, student, said he was working in the garden of his home in Lucerne Road when he heard screams and saw a motor-car pass the gate. ITe lushed out to find Diana Menzics lying on the road. There was no other vehicle on the road, and the motor-car, then disappearing down the incline, was travelling at quite 30 miles an hour. Witness so id he took the injured child to her home and then sought medical assistance. Walter Vague, foreman drainer, in the employ of the City Council, said he saw the car driven by Power coming toward him down Lucerne Road. It was following an erratic course, and a motor-cyclist who followed it down the incline told him there had been an accident and that he would chase the car concerned.

Passenger in the Oar. Sir Graeme Sinclair-Lockhart, insurance inspector, said he was riding a motorcycle down Lucerne Road with a woman on the pillion seat when he came upon a child lying on the road. There were several children near and witness said he set off to stop a motor-car travelling ahead. After going some distance he identified tho car as that owned by his cousin, a brother of accused. He did not think it necessary to stop the car. James Coe, retired, of 19, Lucerne Road, said he also ran out when he heard children screaming. He was certain there was no other vehicle on the road, and no hawker's cart was near the scene of tho accident.

Mabel Frances Dudson, who was with accused in (he car, said she noticed a fruiterer's cart some distance down Lucerne Road as they turned out of Remuera Road. She saw several children playing on the left-hand side of the road, and as the car approached the children crossed io the opposite side. The cart was nok between the children and the motor-car. Witness said she only saw a flutter of pink in front of the car, but she felt sure the child bad crossed safely. She felt no hump whatever. They drove on fo Power's home to secure some benzine and "n returning through Lucerne Road found that an accident had occurred. They then stopped and made inquiries. Witness denied that Tower had run away from the consequences of the accident. Thev had no idea anything harl occurred. She added that she was crossexamined continuously for five hours at ihp police station. Mr. Leary stated he did not intend to fall evidence for the defence.

At this stage the hearing was adjourned until this morning.