MAN’S DEATH IN COLLISION

Southland Times, Issue 24104, 18 April 1940, Page 5

MAN’S DEATH IN COLLISION

Charge Dismissed By Magistrate

IDENTITY OF DRIVER IN DOUBT

“I don’t believe the statement which the accused made to the police. I do not know whether he is trying to shield someone else—if so, he is being very foolish—but I am satisfied that no jury could convict him on this charge.” With these words Mr R. C. Abernethy, S.M., in the Magistrate’s Court yesterday dismissed the charge against James Thomas Kelly, a. single man, aged 31, of Bluff, of negligently driving a motor-car causing death. Kelly was charged with driving a car on the Wairio-Nightcaps road on December 2 last year in a negligent manner causing the death of James Hogan. The accused was represented by Mr B. W. Hewat. The case for the police was conducted by Detective-Sergeant R. Thompson. James Ramsay, medical practitioner and house surgeon at the Southland Hospital, said that on the morning of December 3 last a man named James Hogan was admitted to the Southland Hospital suffering from shock, a fractured neck, lacerations to the forehead and abrasions to the right hand and left ankle. On December 6 he died from those injuries. The cause of death was a broken neck and spinal injuries.

Cross-examined by Mr Hewat, the witness said that where a person was suffering from a broken neck and injuries to the head, it was common for that person to have no recollection of the accident. That was one of the effects of concussion and shock.

In reply to questions by the Magistrate the witness said that it was usual in the case of concussion for the person to suffer loss of memory. He could not quote text-book authority for this statement, but he had seen a number of cases.

Kenneth William Loan, an employee of the Lands and Survey Department, said that on January 20 he accompanied a constable to Wairio and prepared a plan of the road from information supplied by the police. The metalled road was about 27ft iri width; where the accident occurred the road was 26 feet wide. There was a low bank at each side of the road, a stretch of grass and a fence. COLLISION DESCRIBED Thomas Luke, a miner, of Ohai, said that on the evening of December 2 he was a member of a band playing at a dance at Nightcaps. He left Nightcaps about midnight and was driving his own car. With him in the car were a companion, Forde, and two women. When he left for home his lights were in good order. About a mile down the road he saw the lights of an approaching car and dipped his own accordingly. He was travelling on his correct side. The only thing he could see was that the car was coming straight to-1 wards him. The road there was straight, with a slight incline. Seeing the car coming at him he applied his | brakes. He was as far over on his correct side as he could get. There would be about two feet of the metal road to spare. The other car collided with his, striking the right-hand mudguard. One of the passengers in his car, Miss Forde, suffered a broken nose and facial injuries. He did not see any of the occupants of the other car until later. He was attending to Miss Forde who had been carried to the side of the road.

Cross-examined by Mr Hewat, the witness said he had two feet of the metal road to spare. When he approached the other car he was looking straight ahead. Mr Hewat: Were you watching the side of the road for your position, or were you watching the other car?

Witness: I was looking at the car, because I knew I was on the correct side of the road.

Where did you dip your lights?—At he bottom of the incline.

To Mr Hewat: As he went up the incline he could see only the glare of the headlights, and not the headlights themselves. As soon as the lights appeared over the crest of the incline he applied his brakes. At no time did his speed exceed 25 miles an hour. Going up the incline the car would be travelling at from 15 to 20 miles an hour. SAW NO OCCUPANTS The witness explained that he saw none of the occupants of the other car as he was attending to Miss Forde by the side of the road. Archibald Forde, a labourer, of Wairio, said he was present at the dance at Nightcaps. He left about midnight in company with Luke. He was in the rear seat of the car and Miss Forde was in the front seat with Luke. After the collision he got out of the car. Luke’s car was on its correct side of the road after the impact. He could give no estimate of the speed of the other car before the accident. When he got out of the car he saw that Bernard Hogan was standing on the road on the driver’s side of the car in a line just behind the driver’s seat and in front of the rear seat. A man named Robertson -was in the front seat next to the driver’s seat. No one was sitting behind the wheel. James Hogan was in the seat behind Robertson. The accused was lying on the road, in a line with the back of his own car. He was unconscious.

To Mr Hewat: Kelly’s car was broadside on the road, facing Luke’s car, after the accident. The cars were four or five feet apart and were approximately at right angles. Both doors of Kelly’s car were open on the driver’s side. Kelly was lying on his face and his hands were in the pockets of his overcoat. The witness rolled him over —he was unconscious. He spoke to Bernard Hogan who appeared quite dazed.

To the Magistrate: Kelly was lying about seven or eight feet from his car. He did not see Bernard Hogan get out of the car; he just saw him standing there.

Harold Henry Murphy, service manager employed by Macauley Motors, Invercargill, said his firm took possession of Kelly’s car and brought it to the garage. It was very extensively damaged. The witness described the damage to the car and expressed the opinion that the steering had not been damaged before the accident. The steering was badly bent but was still connected right to the wheels. CONSTABLE’S EVIDENCE Constable J. A. White, of Nightcaps, said that on the morning of Decembex 3 he went to the scene of the accident. Kelly’s car was on its incorrect side of the road and had swung round, and Luke’s car was on the correct side. The right wheel of Luke’s car was three yards from the left edge of the gravel. The right wheel of Kelly’s car was about seven yards from the left edge of the gravel. When he arrived Bernard and James Hogan were unconscious; Kelly was in a semiconscious state and smelled strongly of liquor. To Mr Hewat: He had no information to indicate that Kelly had been driving the car. His information suggested that someone else was the driver. Detective-Sergeant Thompson pro-

duced a statement made by the accused on December 3. In his statement the accused said he was the owner of a small sedan car. On Saturday, December 2, he went to the Wairio trotting meeting in this car. James Hogan and a man named McDonald went with him. McDonald left the racecourse early and he did not see him afterwards. He (the accused) drove the car all the way. Bernard Hogan did not drive it at any part of the day or evening. He (Kelly) did not have any drink at all during the day or evening and he denied that he was intoxicated at the time of the accident. He had been driving a car for the past two years. After the trotting meeting he went to a friend’s place at Wairio with Bernard and James Hogan and Robertson. After tea they went to Nightcaps and later returned to Wairio, after Robertson had visited some relations there. They had lunch at the Wairio Hotel but he had no drink there. He did not see the others having any drink. As far as he knew, all were sober. STEERING GEAR BLAMED They later returned to the friend’s house and stayed till fairly late,, the accused continued. They left for Nightcaps and he was driving the car. Bernard Hogan was in the front seat with him and the other two men were in the rear seat. “When we were about half-way to Nightcaps something appeared to go wrong with the steering gear,” continued Kelly in his statement. “I was on my correct side at the time and the car swerved towards the right. I remember hitting another car and that is all. I did not see the other car before the accident although I was keeping a good look-out. I cannot remember anything after that. The next thing I remember is being in bed at the hospital.” To Mr Hewat, Detective-Sergeant Thompson said that the statement was taken at the hospital by Detective Hill, while James Hogan was still alive. James Hogan had directed what should be said and was really “in charge of operations.” IDENTITY OF DRIVER For the defence, Mr Hewat said there was no evidence that Kelly was the driver of the vehicle; in fact the evidence was to the contrary. Luke had stated he did not know who was the driver. Forde had given evidence which seemed to indicate that Kelly was not the driver—the reference to Kelly lying with his hands in his pockets pointed to that. And, finally, Constable White had obtained no information to indicate that Kelly was driving the car. Counsel submitted that it was not necessary for him to ask the accused to give evidence, though he wished to reserve the right to call Kelly if necessary. The only statement, he said, which indicated Kelly as the driver was his own statement, given at the hospital under the direction of James Hogan, who had subsequently died. Mr Hewat submitted that no jury could convict Kelly under the circumstances and contended that the evidence should be dismissed. “A SERIOUS CHARGE” “This man is up on a serious charge,” commented the Magistrate at the conclusion,of the evidence. “He has made a statement to the police in which he said he was the driver of the car. The police have properly and fairly stated that in taking statements from the persons in Kelly’s car James Hogan ‘took charge of the operations and directed what was to be said’ as the detectivesergeant put it. There is no call for the accused to give evidence. It is for the police to prove their case. It is the duty of the police to clear the matter up if possible. “I am satisfied that no jury could convict on the evidence. The accused was found thrown out of the car with his hands in his pockets. It is hard for anyone to believe that he could put his hands in his pockets when being thrown out of a car or that he did so before being knocked unconscious. I don’t believe the accused’s statement to the police. I don’t know whether he is trying to shield someone else. The charge, however, is dismissed.”