TRAM FATALITY

Otago Daily Times, Issue 23205, 1 June 1937, Page 7

TRAM FATALITY

CHARGE OF MANSLAUGHTER NEGLIGENCE ALLEGED HEARING OF EVIDENCE The Supreme Court, over? which Mr Justice Kennedy presided, was engaged yesterday in hearing evidence in the case in which Alfred Chapman, aged 33, a tramway motorman, is charged with committing manslaughter in that he killed John Kenny. The charge, to which the accused pleaded not guilty, arose out of the accident in Signal Hill road, Opoho, on the morning of April 15, when a tram driven by Clyapman left the rails and plunged through a fence, fatally injuring Kenny, who was walking on the footpath. The case for the Crown is being conducted by the Crown Proaecutor (Mr F. B. Adams), and the accused is represented by Mr C. J. L. White, with him Mr J. C. Mowat. The hearing of the evidence for the Crown occupied the whole of the day, and the case for the defence will be commenced when the court resumes this morning. CASE FOR THE CROWN In his address to the jury, the Crown Prosecutor said the charge against the accused was upon a single count of manslaughter. To substantiate a charge of that kind it was not necessary for the Crown to suggest that there was anv intention to cause death; the charge was based solely on negligence, and the allegation of the Crown was, therefore. that by negligence, the accused brought about the death of John Kenny. Mr Adams outlined the facts of the case which, he said, were within an exceedingly short compass. All he would have to discuss was what constituted negligence. The jury would have to bear in mind that a high degree of care was required of a person in charge of a large, heavy vehicle such as a tramcar ■running in the streets of the city, both for the safety of the passengers and of persons using the roads or footpaths. Constant and unremitting vigilance was necessary. The jury should also know that the standard of care required in a criminal charge such as the present one differed in no way from the standard required in an ordinary civil action for damages. There was no requirement in the criminal law that the accused should be shown to be guilty of gross negligence, but merely that there was failure to exercise a degree of care that would have been exercised by an ordinarily careful person. It was the jury’s duty, therefore, to inquire whether, in this case, the accused was guilty of failing to exercise that degree of care which, as a reasonable man in charge of a tram, he should have exercised. After a brief explanation of the mechanism of a tramcar, Mr Adams said that when the car concerned was examined after the accident it was found to be in a mechanically perfect state, and there was nothing whatever to account for the supposed failure of the brakes. There was no reason, therefore, why the car should ever have got out of control. Dr A. M. T. Dickie, a house surgeon at the Dunedin Hospital, described the injuries suffered by the deceased, John Kenny, when he was admitted to hospital. THE ACCIDENT

Thomas Alfred Biggs, a mechanical engineer, employed by the City Corporation Tramways Department, said he was walking down Signal Hill road on the morning of April 15, and he saw the car as it reached Roxburgh street, a block below the terminus at Opoho. It was travelling much faster than the usual pace at that point and was swaying. It then jumped the rails, ran 30 or 40 yards on the street, then turned to the right, ran over the footpath, and crashed through a fence. Kenny, who was walking down the footpath, hesitated, evidently realising there was something wrong with the tram, and just before it hit him he seemed to step backwards as though to avoid it. The tram came to rest in a section on its wheels. The visibility was fairly good, although there was some mist and the rails were slightly wet. The first portion of the line was steep, but the track was about level where the car left the rails. When the tram turned off the rails it was travelling at 30 or 40 miles an hour. Charles Herbert Thompson, a medical student, who was a passenger on the back platform of the tram, said it soon gathered speed after leaving the terminus, and he realised when it had gone less than 50 yards that there was something wrong. He could tell that the magnetic brake was not working, and about 30 yards above Roxburgh street he saw the motorman working the hand brake. The tram left the rails shortly below Roxburgh street, and witness was thrown off iust before it stopped in the section. —To Mr White, witness said the speed of the car became progressively faster as it descended the hill, pitching and swaying in its course. He did not know when the motorman started winding the hand brake. Walter Booth, a packer, another passenger, said that 10 or 20 yards from the terminus the tram was swaying violently.—To Mr Mowat, he said the cars usually swayed when coming down the hill, but on this occasion the swaying was much more pronounced than usual. Terence Granville Bradley Fennell, who was the conductor on the tram, said he was collecting his fares when he noticed that the car was travelling a little faster than usual. It was customarily possible to feel it pulling up after going a few yards, due to the action of the magnetic brake There was nothing witness could do about it, as a conductor was not allowed to touch any of the mechanism of a car until he received a signal from the motorman to do so. On this occasion he received no such signal CONDITION OF TRACK Constable Kirk said that 10 minutes after the accident the rails were greasy, and there was some mist. It was roughly 220 yards from the terminus to where the tram left the rails. —To Mr Mowat, witness said he had just paced the distance, and he would not deny that by actual measurement it might be 193 yards. ‘ Elwyn Frank Evans, resident engineer of the Public Works Department, said he had examined the tram line, which ran from a steep grade until it was practically level. There was a curve in the line,, but it would be looked on as an easy one from a tramway point of view. The track was in good order, and there was nothing about it which could cause difficulty for a tram driven at a reasonable speed.—To Mr Mowat, witness said that, apart

from taking levels on the grade, he made no inspection of the foundation of the rails to see whether it was solid. —Re-examined, witness said the Order-in-Council provided for a maximum speed on the Opoho line of 15 miles an hour and six miles an hour around corners Sergeant Johnsen gave evidence with respect to a statement he took from the accused at 10.30 a.m. on ihe clay of the accident. In the statement the accused attributed the accident to the failure of the magnetic brake. TRAMWAY MANAGER’S EVIDENCE William Handel MacKenzie, manager of the Tramways Department of the City Corporation, said that half an hour after the accident he examined the controller of the tram. Ho found that the reversing lever was in the reverse position. The other lever was between the first and second brake notches. The circuitbreaker had been thrown off. To use the third emergency brake a motorrnan must bring his controller handle to the neutral position, pull the reversing lever to the reverse position, knock out the circuitbreaker. and then bring the controller handle round to the full power notch. The position in which he found the tram was consistent with an uncompleted attempt to use that method of breaking the tram. The Opoho line had been in operation for 12 or 13 years, and one car had previously been out of control at the same place as the present one, although it was not derailed. It was pulled up on the third emergency brake. The car which left the rails on April 15 had been in use since the accident, having done a little over 2000 miles in that time and had given no trouble. Approximately 15,000 trips a year had been made down the Opoho line since it had been opened. Witness, after the accident, could find nothing wrong with the track, and tests subsequently made by the Public Works Department revealed that there was nothing wrong with the brakes. The accused had been a spare motorrnan for seven months, and had a motorman’s certificate. —To Mr White, witness said that, with the car off the rails, the handbrake would be the only one which would have any effect. No fault had been found with the magnetic brake in the car which had previously got out of control on the Opoho line, although it had been stated that the magnetic brake had failed on that occasion. If the magnetic brake were applied at about 40 miles an hour, there was a danger of a temporary short circuit, which would render it ineffective. The examination after the recent accident showed that the first three actions of the application of the third emergency brake had been performed, although it was possible that the accused had completed the last movement and that the lever had been knocked back by the impact when the car charged through the fence. Witness admitted that not one motorrnan in 50 might know anything about the Order-in-Council which limited speed on the Opoho line to 15 miles an hour. He would not say that the motormen had been informed of the speed limit, although they should never exceed the limit if they were keeping their trams under proper control. The type of tram involved in the accident had been in use for 33 years. His Honor: Is there a speedometer or anything corresponding with one in a tramcar? Witness: No, sir. His Honor: Then a motorrnan must judge from the feel of the car how fast he is travelling? Witness: Yes. TESTS CARRIED OUT Maurice Ordish Fairhurst, plant overseer in the Public Works Department, said, he examined the tram after the accident. When the tram was placed back on the rails it travelled backwards and forwards quite normally, and when it was taken back to the sheds he made a pit examination, which showed that mechanically and electrically the tram was not damaged. The next day the tram was subjected to magnetic brake tests and hand brake tests which showed its brakes to be in first class order In every test the tram stopped in a shorter distance than that required by the regulations. The tram was then taken to Opoho and tried down the slope between the terminus and where it had left the rails. The hand brake and the magnetic brake were each tried separately, and either was sufficient to keep the car under control. Neither in his examination nor his tests did he find anything that would account for the alleged failure of the magnetic brake when the accident occurred. —To Mr White, witness said he had no practical experience of driving trams. William Davis Richards, an engineer in the Tramways Department, said the car had given no trouble prior to the accident. He was present at the subsequent tests,.and was of opinion, as a result, that the car was in good order It had given no trouble since. This comoleted the case for the Crown. Mr White intimated that it was intended to call witnesses for the defence. The court was adjourned until 10 a.m. to-day.