SUPREME COURT

Timaru Herald, Volume CXXV, Issue 18491, 5 February 1930, Page 3

SUPREME COURT

QUARTERLY SESSION. (Before His Honour Mr Justice Adams.) | The quarterly session of the Supreme . Court opened at Timaru yesterday. I The following grand jury was em- j panelled:—W. W. Baxter (foreman), j John Hutchison, A. N. Oakey, L. B. j Pearson. M. Codyre, F. S. Shrimpton, ] J. Cleland. G. G. Triggs, J. B. Crowley, , ! R. L. Shillito, J. A. England, C. W. Cameron, A. W. Osborne, F. H. Davey, C. Johnson, W. C. Davies, F. S. Cave, R. G. Kilgour, D. Reese, C. L. Maslin, H. J. Washer, F. H. King and I. W. Cunningham. I His Honour’s Charge. His Honour said that the grand jury had three cases for consideration. He was sorry to have to state that one of the three charges concerned murder, one of the highest offences known to the law, in which Jack Oldfield, farmer, of Seadown. was charged with having murflered his wife on January 13. His Honour said that from the evidence in the lower Court the accused had been at the war, and there received wounds, including one to the head. Returning to New Zealand he worked on his father’s farm for some time, after which he took a small farm of his own, working the two toge f her. On the death of his father and mother, accused took over half of the farm, his brother taking the other half. On December 19 last accused v-as married and arrived at the farm on December 28th with his wife. As far as the evidence showed the two appeared to get on quite well together. On the morning of January 13, accused appeared at his brother's farm in possession of a shot-gun, the brother being in the cow'-yard. Accused asked his brother for some cartridges, and received the reply that he would find them in a shed. Later the brother heard accused call out: “Good-bye Eldred.” The brother saw him in the act of pulling the trigger of the gun, and called foi the assistance of his man, the two o: them taking the weapon from accused When the gun was taken, direct evi- > dence was found in a statement by th< | accused himself, W'ho said: “You hat ) better let me finish it, Eldred, I’ve kill ed Chrissie.” Eldred Oldfield then wen to the farm, and found the wife ii bed with her head covered with blood She was still breathing, but when ; doctor arrived the woman was dead In a later interview, accused seemed ti have repeated the statement that hhad killed his wdfe. A blood-stainec axe was found under the bed. Th evidence w r as contained in the state ment of accused himself, and the cir cumstances of the act would be ob served later. The evidence was quit simple and there was no need to advi& the jury further. The second case was under th' Motor Vehicles Act,„ in which Ernes P. Henshaw was charged with drivini a motor vehicle in a negligent mannei thereby causing the death of a humai being. The occurrence took place oi October 7th, and apparently accused with four other men, drove fron Christchurch to Ashburton durini which part of the journey the owne . of the car drove. At Ashburton accusee took the wheel, and drove down ti where the accident occurred. Part o the transit was apparently covered a a speed of 40 miles an hour. There wa, evidence to say that from Winslow t< Windermere the accused kept abreas of a train but at a water-race befor< the intersection was reached, slowec down to negotiate this. The train stop ped at Windermere. Deceased was evi dently driving his car along the Win dermere Road, and the corner where the accident happened was more or les obscured by trees and obstructions The accused was driving on his correct side, and there was a certain duty oi Annett when approaching the highway froip a minor road. Annett apparently did not give way, but drove I straight along the centre of the roati The question the jury would have tc decide was whether or not there wa:

negligence. If they thought the two parties were equally negligent, and ' neither "cl have prevented the accident, i the damage fell where it lay. If two persons were equally negliI gent, and such an acident happened, I the question was whether or not it j could be said that one of them caused the death of the other.

The other charge the jury would be asked to consider was one in which James Charles Allfrey was charged with assaulting a little girl. His Honour said he did not proposed to advertise the unfortunate facts of a case in which a little child was concerned, but that the jury would be made conversant with the evidence from the lower Court in their room.

The grand jury retired at 11.40 with a true bill against Henshaw. At noon they returned with true bills agsinst Oldfield and Allfrey.

Verdict of Not Guilty. Ernest Peter Henshaw, a youth, was charged that on October 7, at Windermere, near Ashburton, he did negligently drive a motor, vehicle, thereby causing the death of Charles Annett. The following common jury was empanelled:—A. S. Kinsman (foreman), T. E. Stenhouse, B. Gee, J. H. Clark, J. C. Brosnahan, J. P. Rosevear, W. R. Brookland, C. E. Brown, R. V. Kennedy, T. H. Talbot, T. West and F. E. Hind. a . Mr F. J. Rolleston appeared for accused, who pleaded not guilty, and Mr W. D. Campbell (Crown Solicitor), prosecuted. Mr Campbell said that the Motor Vehicles Act, Under which the charge was laid, gave no - definition of what negligence really was, and it would be left to the jury to decide on the evidence. The duty of a motorist was to exercise all possible care, and on two points the jury had to be satisfied before the accused could be found i guilty. The first was that he had been J negligent, and the second was that I through such negligence he caused the 1 death of deceased. A point to be considered was whether the speed of I accused on a main road was unreason--1 able, or whether it was just misfortune for the deceased to have come on to the main road at the time. There was a clause in the Act, relating to driving in a manner dangerous to the public, which stated that when approaching ap intersection a driver must slow down and have a clear vision from a distance of 90 yards. It was submitted , that the same could be made to apply in the case of accused. It was for the jury to say if they j thought Henshaw was travelling too | fast when approaching the point of 1 impact. Dr H. C. Bilcliff, medical superin- ! tendent at Ashburton Hospital, said I that life was extinct when deceased | was admitted to the institution. An examination revealed a fracture on both sides of the jaw, evidence of a skull fracture, and numerous other injuries, including abrasions behind the left ear. In his opinion death was due to a fractured skull and laceration of the brain. Detective Edward Ede (Christchurch), gave evidence of having photographed the scene of the accident from different angles, the prints being handed to the jury for inspection. To Mr Rolleston: At the corner near the accident there was a quantity of gorse which to a certain extent would obscure vision. Travelling at 35 miles an hour, the corner might be hard to define. Constable T. R. Round (Ashburton) said he arrived at the scene of the accident at about 5.30 p.m., and took several measurements. With a plan produced by Mr Campbell, witness demonstrated the positions of the cars. The accused was proceeding on his correct side of the road, 28 feet from the fence. The impact took place at the centre of the road, Annett having been travelling on this portion. He had not veered out. Both cars had been thrown against the fence; Henshaw’s had been moved, but the marks were visible. There was a water race half a mile to the north of the scene, and this would have to be negotiated by Henshaw’s car. To the north of the Windermere road witness could see a chain up the Main South Road, and travelling south along the main road the view of the Windermere road was obscured, a double hurdle indicating a by-road. After the impact Annett’s car had travelled 55 feet, and accused’s 42 feet. | In reply to Mr Rolleston, witness \ said the intersectiop was not clear to j the eye of the average person travelI ling along the road. It was, in fact, a j bad corner. Witness tried the hand I brake of Annett’s car, and it indicated that it had not been used. He would ! not like to give an opinion as to the j condition of deceased’s brakes. It ap- ] peared that Annett was not prepared ! for the crash, and was so surprised | that he had not had time to do anything. It was the duty of a driver to give way to traffic on the right. Percy Annett (15), son of the deceased, said he accompanied nis father in the car on the day of the accident. At the time the car reached the main road it was about 5 o’clock. The speed of the car before the main road was reached was 20 miles per hour, but at the corner this was reduced to approximately five miles an hour. Before they actually came on to the main road, witness did not see anything, but when they turned on to the highway he could see a car about a chain away. From then on his memory failed him. His Honour: “You don’t remember the accident at all.” Witness: “No.” Mr Rolleston: “If you came on to the main road at five miles per hour, wouldn’t it have been possible to pull up when the other car was sighted?” Witness: “I don’t know.” His Honour: “I don’t suggest that you should not press the point, but perhaps you could rely on the common knowledge of jurors.” Mr Rolleston: “I will, your Honour.” ! To Mr Rolleston: It was correct to say there was a considerable amount of traffic on the main road, and this would be anticipated on entering from a by-road. He did not know of the | condition of the brakes on his-father’s j car.' ! To His Honour: His father was ac- ; customed to driving along the road, i Herbert Charles Packman, builder, 1 Timaru, owner of the car Henshaw was driving, said they passed through Ashburton at 4.40 p.m. The average speed of the car from Ashburton to Windermere was 35 to 40 miles an hour. They met the train at Winslow, and this got ahead of them when they encountered a water race some distance from the intersection. This steadied the speed of the car to 25 miles an hour, but by the time the , corner was reached the speed would 1 be increased to 30 miles an hour. He did not notice the intersection until Henshaw shouted out. The next thing he saw was the other vehicle coming straight at them. Both cars appeared ! to be the same distance from the corner. They did not have much time to make observations, but the other car 1 was struck on the driver’s side, and , their car on the other side. The collision occurred dead on the intersec- | tion. When approaching the intersec- ; tion Henshaw veered to the right, and I witness thought he applied the brakes. | To Mr Rolleston: When witness left i the car after the accident the train | was at Winslow station. Deceased did i not give any indication that he ini tended turning. He examined dei ceased’s car afterwards. The hand i brake was off, and the petrol lever

was fully advanced. The accident would never have happened had deceased done something. He did absolutely nothing, but came straight at them. William Andrew McLachlan, labour- j

er, Ashburton, said he was on the Windermere Road, when the deceased passed him. Witness was in charge of a threshing mill, and was stationary at the time. He heard Annett sound the horn when approaching the corner, and next heard the crash. Alfred Leonard, a guard employed by the New Zealand Railways, said he was the guard of the Ashburton- j Timaru mixed train on the day of the j accident. The train stopped at Wins- \ low and Windermere, and between the two stations, a distance of approximately three miles, the railway ran parallel with the road. He noticed a car when they were a mile and ahalf to two miles past Winslow, the speed of the train being in the vicinity of 40 miles an hour. The car was ahead of the train until it slowed up to pass a water race. The train then took the lead, and within a quarter of a mile from Windermere the car was about 100 yards at the rear of his van. Before the train actually stopped he saw the two cars meet at the intersection. He could not estimate , the speed of either car on the main | road just before the accident. , To Mr Rolleston: He remembered in j the Lower Court making a conservat- i ive estimate of Henshaw’s speed at the time of the accident at 30 miles an hour, and would adhere to that. I

Alexander Reginald Hunter, railway fireman, said he was firing on the mixed train which left Ashburton at 4.35 on the day of the accident. It would take the train about half a mile before it could attain the desired speed of 40 miles an hour. Henshaw’s car passed the train, and then slowed down at the water race. He saw someone wave from the car.

To Mr Rolleston: He had no instrument for checking the speed of the train, but he could give a fairly accurate estimate.

Senior-Sergeant H. Martin, Ashburton, said that accused called at the Ashburton Police Station after the accident and made a statement. This witness read.

This closed the case for the Crown, Mr Rolleston intimating that he did not wish to call evidence.

In addressing the Court, Mr Rolleston said that Mr Campbell had placed the matter quite clearly before them. It was very unfortunate that deceased had lost his life, but it would also be a handicap for a young man like accused to go through life knowing the Court had held him responsible for the death of a fellow-being. The Crown’s only evidence of negligence against accused was that of speea, out he did not thing that in keeping with a slow train an excessive speed was reached. Accused had admitted quite frankly that at times he had attained a speed of 40 miles an hour. Possibly he should have slowed down to 15 miles an hour at the intersection, but counsel submitted that even a breach of this -section was not necessarily negligent. The gorse at the corner made it hard to appreciate that the crossing existed, and for this reason a breach of a regulation lost a lot of weight. It was obvious that there was something the deceased should have done. He had been fully conversant with the road, and in order to keep within the off-side rule the onus was on him to give way to main road traffic. It was the deceased’s bounden duty to be prepared to meet any emergency when entering the main road. If any signal had been given the accident might have been avoided. Under the circumstances, Henshaw’s action at the time was perfectly reasonable. In view of Annett’s slow speed when turning into the road, it appeared that he had an abundance of time to avoid an accident when he first sighted Henshaw, instead of continuing up the middle of the road. It was quite clear that he did not make any attempt to apply his brakes, and whe nthe car was examined there was evidence of a wideopen throttle. Whether the deceased lost his head is not known, but Mr Rolleston submitted that the responsibility for the accident did not lie with Henshaw.

In his summing up, His Honour stated that they must be satisfied beyond reasonable doubt that the accused was guilty of negligence before returning a verdict of guilty. They should not be concerned with the speed of the car before the intersection w'as reached, but what mattered principally in that direction was the speed at the intersection. An important regulation, which must enter into the case was paragraph 13 of Regulation 12, of the Motor Vehicles Act, which stated that a driver of a motor-vehicle approaching any intersection, the at which is not at the time- being controlled by a police officer or traffic inspector, when any other vehicle is approaching, making the possibility of a collision, shall, if such vehicle is approaching from his right, give way and allow the same to pass beforehand, and. if necessary, stop his vehicle. It seemed from the evidence that it was Annett’s duty to give way, and unfortunately he did not do that. The evidence showed that deceased drove on in a straight line, not stopping or turning to the side to avoid the other car. It was for the jury to say if they thought accused's negligence was the cause of death.

The jury retired at 3.50, and returned at 4.18, with the following verdict:—“We are unanimously of opinion that accused was not guilty of negligent driving so as to cause the death of Mr Annett, but that he did what he could to avoid the unfortunate occurrence. The jury expresses sympathy with the relatives of deceased.” A recommendation with regard to the accident was suggested by the jury as follows:—“That all intersections of main roads which are not clearly visible to motorists at a reasonable distance should have efficient sign-posts erected.” IN BANKRUPTCY. The application of Mr T. C. Farnie (Geraldine) for an order of discharge from bankruptcy on behalf of Thomas Arthur Bruce, farmer, Hilton, was granted.