SUPREME COURT.

Timaru Herald, Volume CXXV, Issue 17946, 3 May 1928, Page 7

SUPREME COURT.

TIMARU SESSION

(Before His Honour Mr Justice Adams).

The quarterly session of the Supreme Court was continued yesterday morning. When the Court adjourned the previous day, the Crown case against William George l)rew and AViliiam Chiles, who were charged with negligently driving a motor-van along Coonoor lloau, on February 14, thereby causing the death of Noel H. Waller, had just been completed. The accused were represented by Mu W. H. Walton, the case for the Crown being conducted by Mr W .D. Campbell.

The jury which was empanelled was as follows:—Messrs C. H. Johnston (foreman), C. F. Clarke, J. JL). Williams, J. W. Wakefield, A. Hill, H. E. Lawson, H. Powelll, It. S. Baird, G. E. Knowles, B. Fitzgerald, C. H. Schracder and V. L. Thomas.

Stating the case for the defence, Mr Walton said that the death of the boy was the result of a pure accident, and no blame could be attachable to anyone. l)rew, as he would show in his evidence, pulled on his handbrake and shut off his petrol when he was in sight of the boy. The evidence would : sho\y that the boy was walking down the centre of the road. When the van was some distance away, the boy took a few paces to the right and suddenly turned back across the road in front, of the van. Drew swerved, but was unable to avoid the boy. The accused did everything possible for the boy, and they then proceeded on their round delivering bread.' The evidence would also show that both the handbrake and footbrake were renewed just a short time before the accident. Bvidence would also be brought to show that the particular class, of brakes on ■the van would 'deteriorate as a result of the work they were submitted to after the accident, and this would account for the condition they were in when the detective carried out tests. The accused Drew, in evidence, 'said that he was a baker's journeyman When he went to work for Chiles he understood that the brakes were in good order. A week later, Mr Toney-, cliffe adjusted both brakes. Chiles himself oiled and greased the brakes about every second morning. On themorning of the accident, when descending Ford's Hill, he tested tlie brakes and found them in good order. Ih e van was travelling at approximately 17 miles air hour at the time, and he, brought it to a standstill in seven, or eight yards. Continuing, Drew said that shortly before 3 o’clock the same afternoon, he left Timaru to continue his country round. When rounding a bend on Coonoor Road he saw a boy waking in the middle of the road, 'i li6 boV at that time was about 100 yards away. When the van was 50 yards away the boy turned and saw it approaching. Accused was then travelling about 15 miles an hour. Immediately after' turning -round, tho boy walked three or four paces to the right. He then turned round and ran back in front of the; van. 1 Accused applied the brakes and pulled up in six or seven yards. At the time he applied the brakes, lie also made the car swerve to one side in an endeavour to avoid the boy. Later he went to Mr. Waller’s house and told him of tlie accident. • He did not tell Mr Waller, Mrs Waller or Mrs Heather, that he' had sounded the '-horn. After-, the accident he drove the van a distance' of 40 miles through Southburn and Pareora. He knew that it was pos-. sible to use the reverse gear 'of a Ford' las a brake, but he did hot use it on the day of the accident. When a test was made by the detective on the night of the accident, tlie brakes were found to be irr bad order, and he told tlie detective lie could riot give any reasori for this. He remembered Mr McKirii liaying said that Hie footboard was cracked as a result of the footbrake having been pressed dow’n hard, but the crack was an old one.

To Mr Campbell : Ho would not contradict Mr McKim if he said he had; drawn Iris (accused’s) attention to the fact that tho crack was a new one. He would contradict tlie three people who said that lie had stated that he had sounded the liorri of tlie van. He did not discover the bad state of tho brakes until the detective made a test. .When he. wari. braking the van, ho usually put the engine in neutral, and relied solely on the footbrake. He knew that it wiis dangerous driving without a horn, arid had asked Chiles to secure one. Coining along Coonoor Road, lie had' the engine in neutral. Ho did not slacken up at all until the boy was hit. The.car was well oil the left side of the road, and when the boy darted across in front of the van, he swerved it to the right, the left mud-guard striking the boy. The van. travelled six or seven yards after tho footbrake was’ applied, not after the bov was hit:

Mr Campbell: “At the inquest you said that you slackened up to 10 or 12 miles an hour when you saw the boy. Now you say you did not slacken, Which is correct?”’ Accused: “It is more likely that i did slacken.” ; “And why did you slacken? —“lo avoid the boy.”

“Assuming that you slackened down, (why didn’t you stop?”—‘’The boy Was ,i well on the right side or the road, land lie jumped Dack suddenly.” Tlie other accused, Chiles, said that he was a baker carving on Dusiness at Beaconsfield. He bought trie van on .January IS, and immediately had new hrakeshoes and rods fitted. Tho van was generally overhauled at the same time. Chiles’s story of the accident was similar to that given by Drew, it.! stated further that ne did not riear Drew say that he had sounded the horn.

To Mr Campbell: He did not know much about a car, and did not think it necessary to have a horn on it. He expected Drew to be able to warn anyone by the rattle of the car. Mr*"Campbell: “And a boy can be put in his coffin because you think that way?” Accused: “I didn’t mean, it that Emma L. Daikie, wife of William Daikie, of Beaconsfield, said that on the morning of the accident she was in tlie van coming into Timaru, when the van stopped suddenly, it pulled up in two or three lengths, She heard no remark passed as to why the van I)U John U H G. Forrest, motor mechanic, said that on January 14 he renewed the handbrake of the van. He also inspected the brakes to see that they were properly adjusted. Ihe sudden application of the footbrake would tend to stretch the metal band. 1 the brake was kept on all the J down a steep hill, the tendency would be to burn the surface of tho iabnc lining, and this would reduce the efnc lel To Mr Campbell*: The handbrake was notan emergency brake. simply for holding purposes. l 1 the car at the Police Station it wa not fit to be on the road, ihe sudden application of the footbrake at the accident would account for the cond tion it was in when he saw it. Gordon Toneyeliffo, at Beaconsfield, said that °ri 19 he overhauled the van,, and the footbrake and reverse and low gear. On January 2i al )d °ri hlcll ary 3, he adjusted the .ootbiak,, was then as good “ B ne *; for the def6S? S ,U tfe d S.ut adioumeu <=r ’""when the Court resumed rftcr llS IFVpersou appointed an agent The better course would he to ai o the case to.go to the jury, and m the, Sent of an ’adverse ™rd|ct, the po.n could be made the subject o * appeal. Counsel would also have tho opportunity of applying for a ntri tU Mr Walton said , there was i * evidence of negligent driving against the accused Chiles, because he was not dl His g Honour said there was no evidence of negligence in fact. He.. had not vet heard what,points of negligence' the Crown intended to rely on. It mav be that there were facts which would'draw the owner in. He did not know whether counsel desired a special verdict from the jury. Such was not usual in New Zealand, but at the same time such a course was open. Mr Walton said that he had thoijgrit of the point, but had not considered any questions/ because he did not think.they would be permissible m a criminal case. ' ~. Mr Walton then addressed the jury for. thirty-six minutes. He said that the accident was a case of pure, misadventure, and tlie accused coulcj riot .be held liable.. All tlie witnesses had given their evidence fully and fairly, and nothing had been withheld.. Mr Waller, in his evidence, had said that he had impressed on his son the necessity of keeping to his correct side of the road. On this occasion the lad was in the centre of the load, and when he saw the van he moved to the right. Suddenly remembering his father’s instructions to keep to lis correct side, the boy darted pack across in front of the van, and'the left mudguard struck him on the neck. It could be readily understood that the boy. ’running in the opposite direction to the car, would be easily put off his balance if he was'struck. Both doctors had said that they could fn d no injury caused through cortact with the car, which in itself, '"as sufficient to cause death. Mr Walton went on to point out that if a youth or an adult had acted similarly .to the lad. then they would have been guilty of contributory negligence, and no action could have been brought. Referring to the absence of a horn, Mr-Walton submitted that there was no occasion to use the horn, because the lad had turned round and had seen the van approaching. The absence of the horn contributed nothing to the accident. It had been suggested that the accused, on seeing the boy move to the right, should have gone well over to that side in an endeavour to pass him. Was not the natural thing to do to stay on the correct side of the road? Any move to the right on the part of the accused would probably have confused the boy, and in those circumstances the accused were looking for trouble. A good deal of evidence i bad been called regarding the condition of the brakes, but the statement made that the brakes must have been in the saint' condition at the time of the accident as they were- when examined bv the detective the same evening was purely a matter of theory. The day after Chiles bought the car he bad the brakes attended to, and they were adjusted from time to time. Further, on the very morning of the accident, a test was made, and the brakes pulled the car up in 6 or .7 yards. This was on a grade of one in fifteen. How could it be said that the brakes were, inefficient and there had been negligence on the part of accused, when all these tests had been made? Would anyone care to go down Briggs’ Gully if tlie brakes of a car or van were not in good' order? The accused went down, and they feared nothing, simply because there was nothing wrong. The jury might look for an explanation ns to how the brakes came to be inefficient after the accident, and the most reasonable one was that given by Forrpst, who said that the sudden application of the footbrake would stretch the band, ’which would reduce the state of efficiency materially. Tin. actual tests mado with the car afterwards were of no use in enabling the jury to decide what the condition of the brakes was, for the distances were only guesswork, and the grade was not even known that day. There was no allegation of speed ; in fact all the elements usually associated with motrir cases were absent in this instance. He asked the jury to accept the explanation that the accident was one of misadventure. They had to be sure beyond nil doiibt that the accused were guilty of negligence. If there was any doubt, then the accused should have the benefit- of that doubt.

Mr Campbell said that it was for the jtirv to decide whether there had been negligence on the part of accused. By negligence was meant failure to exercise snob care as one ought to have taken in the particular circumstances. The onus on a motorist of exercising all reasonable care was exceedingly great. In this case they bad two men in a vehicle which was capable of causing death failing to exercise the enre expected of them. Was it pure misndventure that a lad of live years, who was walking down the middle of the road, which, on the metalled part, was 29 feet wide, should be struck by a van and killed? The van, as the accused said, was 100 yards away when the boj' .was first seen. The petrol at

this time was shut off, and remained off until the boy was hit. What pace would the car have been travelling at when there was not power on for 100 yards—actually it was 130 yards, and where the road was practically level? It was the.Jbouriden duty of a motorist, when approaching a child on a road, to slow down, for, as counsel for the defence had said, there was no telling what a child might do. If tho brakes were efficient at the time of the accident, as the accused said they were, then why did the accused not use them? Had they done that, the lad would still have been alive. The lad hinrself must have run 4 to 5 yards while the car went 3to 4 yards. Was it humanly possible for a lad of five years to do that? He put it to them that the accused were going too fast, and had not exercised the care they should have done.

His Honour, in summing up, said the case was a serious one, and one that required a good deal of consideration. Tlie onty eye-witnesses to the accident were the two accused, who were now on trial. In the meantime they wero presumed to be innocent, until a verdict to the contrary was brought in. The Crown had brought important evidence as to the condition of the oar on the following day. But, as Mr Walton had pointed out, the examinations made the next day were not the same as if they had been made at the time of the accident. There was a possibility that some- . mug may have happened to the van in the meantime, and that was important. His Honour reviewed a portion of the evidence given by Mr McKim, who had said that the brakes needed (our turns to made them efficient. That point had to be remembered when’ considering the efficiency of. the brakes. Mr McKim further said: “A test of the brakes the day after the accident would not be a reliable guide to the condition of the brakes on the day of the accident.” Thos.? remarks had also to be borne in mind Was it correct to infer that because the brakes were out of order the day after the accident, that they were out of order when the accident took place ? That was - a matter for them to decide. The evidence of Mr Toneycliffe and Mr Forrest went to show that the brakes had been attended to fairly frequently. The accused themselves asserted that the brakes were _ attended to regularly, but the question was not whether the brakes were in order; the main question was whether the death of the boy was caused by the negligence of one or both of the accused. Assuming the brakes were in good order, then the means of controlling the van, within reasonable limits were in the hands of the driver. If they considered that the driver had sufficient warning of danger, and had not taken all reasonable steps to avoid the accident, then they would have, to convict. Regardins; the owner of the van, His Honour said he would direct that the owner was not to be held criminally liable, for any act of negligence unless it could bq shown that the accident was due some act of his. He was not to be held liable because he was the owner, or because' he was beside the driver, -but only: if by some act- of control be contributed to the- accident. If the brakes were out of order, and they he(id that that was the fault of the owner, then he must also be found guilty of negligence. The jury was at liberty to refuse to accept the -evidence' of any witness for any reason which may seem good to themselves. : If. as suggested, they refused to accept the evidence qf the accused, then they could not’ construct an affirmative case with further- supporting evidence.' -

The jury retired at 4 p.m., and returned at 5.45 p.m., with a verdict of not .guilty. They added a rider, however, that in their opinion, all commercial vehicles should have their brakes inspected periodically. The accused were then discharged. ALLEGED THEFT. Leslie James Roache was charged with the theft- of £4O 17s 6d, the property of the partners of the Farmers’ and Graziers’ Supply Company, Ltd., Dunedin. Accused, who was represented by Mr R. Twyneliam, of Christchurch, pleaded not guilty. Tho following jury was empanelled:—Messrs H. A. Innes-Jones (foreman)! R. I/. Wigle.v, J. Keenan, IJ.1 J . Goldie. F. W. Rush', F. R. Chapman, D. Halkin, W. Kane. W. Carlton, H. W. Burt, T. Guthrie and W. J. Sullivan.

Opening the case for the Crown, Mr Campbell said that the accused and a man named Stokes were the partners in a, business known as the Farm-, ors’ and Graziers' Supply Co., of Dunedin. Accused received a. cheque from a man named Simpson, who had since died, for £4O 17s 6d, and this had not been accounted for until February of this year, when it turned up in Christchurch. If a. man did not account for money which was the property of a partnership, then ho was auilty of theft, even though he had inter paid the money in. When approached by Stokes, accused denied having received tlie money, when it would be proved that he had received a cheque from Simpson, and liryl given a receipt for the money. George Edward Stokes said that he took the accused into partnership in October 1027. The name of the firm ■was the Farmers’ and Graziers’ Simplv Co. and the offices were s ; tunted in Dunedin. At that, time they had no representative' in Oninnru. but at the end df October, thev appointed Mr J. T 5. Miller their representative. The firm had a client lv’med H. Simpson, who lived at Awamoke, just outside Oamaru. Witness produced Simpson’s invoices which were for £1 4s Gd, a-nd £9 2s. There was no invoice for the £4O 17s 6d, which was for an electric range. Accused issued receipts for these three sums, but paid in to the firm’s account in Dunedin, only £lO 6s Gd. Witness spoke to the accused about Simpson’s money, and he said that as Simpson had died, there was no use worrving the widow about the money. The sum of £4O had bee.n paid into the firm’s Christchurch branch b.v the accused. but this was not the full amount received from. Simpson. To Mr Twviihnm : The business in Dunedin was doing fairlv well until the present incident came about. M ltness laid the information with the police, but before doing that, he handed accused a statement for signature. 1 he main points were that the accused should l admit the irregularity, slioula not trade, in similar capacity, in the South Island, and should forfeit Jus share of the partnership assets. Witness received a telegram from the aceiiscid when he went to open .the Christchurch Branch, stating that he bad received £4O from Miller. Do know that that was Simpson’s money, and Miller was credited with, the payment. He had had telephonic communications with Miller about the matter, but be could not recall tliem. Certain affairs bad been investigated, and it was obvious that Miller had taken sums of money from the firm. He wan not aware that Miller was under arrest at that moment. TV hen the accused went, to Christchurch, witness gave him £l2, it being understood that the accused would collect Simpson’s money from Miller, this also to he ns capital for the Christchurch brooch. He still maintained that +he £do had not hepn accounted for. Th® sale of the stove between Rimnson and the firm was negotiated by the accused. Ti AtV Campbell : Tim cheoue tor £4O 17 s 6d was paid on November 15, hut the money was not received bv fbe firm until on or about. January 30.” David B. Currv, accountant for the Farmers’ and Graziers’ Supply Co.

said that on November 17, when accused returned from Oamaru, he accounted to him for £lO 6s 6d. He heard Stokes ask the accused on several occasions why it was that Simpson’s account was outstanding. Accuscll put. the matter off by saying that he would find out who Simpson’s solicitors were, and the account could be sent to them. To Mr ; Twynham : It was correct that the firm had had trouble with Miller over the collection of money. William Simpson, farmer of Tokaralii, stated that he was a brother of the late Herbert Simpson, and a trustee in his estate. He bad not paid any money to the Farmers’ and Graziers’ Supply Company. Bertrand E. F. Wliitooinbo, bank manager, Oamaru. said that he knew the. late Herbert Simpson. On November 16, a cheque for £4O 17s 6d. signed by Simpson was cashed at- the Bank. ‘James Bruce Miller said that during the last three months of last, year lie was travelling for the Farmers’ and Graziers’ Supply Co. He had done* business with the late Mr H. Simpson for amounts totalling £sl 4s. This money was paid to the accused in lus bedroom at the Queen’s Hotel. , A cheque for £49 19s 6d was written out and the remainder. £1 4s Gd, was paicl in cash. Accused gave a receipt for the money, because witness, up to that time, bad no receipt book. Before rros'-cvsimining. Mr Twynliam asked His Honour if there was i anv eaof theft, to eo to the jury. I His Honour said that be was not aware that the Crown case bad been closed. A Air Twynham then proceeded to cross-oxamine the witness Miller.

Mr Twynham: "You were arrestcjl the night before last, were you not?'' Witness : “Has that got anything to : do with the case?” Turning to His Honour, he asked: “Must 1 ansver the question?” , , ~ His Honour: “You had better answer yes or no.” Witness: “When did you say? Mr Twynham : “Within the past few days.”—“Yes.” „ T • ! And what was the charge;—lssuing a valueless cheque.” Continuing, under cross-examination, witness said- that on January 31, he received a provisional receipt irom the accused for £42 2s Gd. This eyas given by the accused simply as a mult, to cover up his own defalcations. Brief, evidence was given by Detective Nuttall. This closed the case for the Crown. A member of the jury at this stage asked His Honour if they could ( ccide the ca?e without adjourning untij today It appeared to him that they could save the valuable time of the Court if they were allowed a few minutes together. His Honour said that counsel ought to bo heard before the jury decided on their verdict A juryman : “Counsel will not change our minds. Me have formed our opinion on the evidence wo have hoard.” His Honour said the host course was to adipurn the case until this mornin" which was done. The Court iron at 5.50 p.m., until 1(1.15 this morning. ■HJWPM.'MP——W