VERDICT OF NOT GUILTY

Timaru Herald, Volume CXXXVIII, Issue 19860, 25 July 1934, Page 13

VERDICT OF NOT GUILTY

DEATH OF YOUNG MAN NEGLIGENT DRIVING CHARGE After a retirement of 21 minutes, the jury at the Timaru Supreme Court yesterday returned a verdict of not guilty in a case in which John Robert Nimmo, of Dunedin, was charged that on June 18, at Timaru, he did negligently drive a motor car thereby causing the death of a young man, Ivan Herbert Smith. The accident occurred in Wai-iti Road at about 10.30 p.m., Smith and a companion being knocked down near Selwyn Street, Smith later dying in the Timaru Hospital as a result of his injuries. The case was heard before his Honour Mr Justice Johnston. Mr W. D. Campbell (Crown Solicitor) prosecuted, accused being represented by Mr C. S. Thomas of Christcnurch, who had associated with him Mr J. P. Steven. The following jury was empanelled: Messrs T. A. Christie (foreman), E. M. Tozer, W. H. Marsden, J. H. Ford, A. H. Chiles, George Berry, C. S. Marshall. A. C. Mcßeath. G. Findlay, W. F. Spurdon, L. T. Green and G. S. Ayling. Mr Campbell, in outlining the case to the jury, said that the evidence would show that Smith and a companion named Elgin were both knocked down on the wrong side of the road where the car pulled up. James Samuel Huston, a draughtsman employed by the Timaru Borough Council, gave evidence as to the compilation of a plan from information and a sketch supplied by Constable Abbott. In reply to Mr Thomas, witness said that he had prepared another plan at the request of Constable Ward, in which there were differences from the plan drawn at the request of Constable Abbott. Companion’s Evidence. Gustav Henry Elgin, who was in the company of Smith on tne night of the accident, explained that the pair walked up Wai-iti Road accompanied by a young man named Hume. Hume left them just before the residence of Mr J. W. Adams, to cross to his home in Wai-iti Road, and witness and Smith crossed the street a little further up, to proceed down Selwyn Street. As they went to cross witness saw no sign of a car coming up Wai-iti Road, and when they were nearly across the road witness looked to the right and saw a car nearly on to them. The car, which was on its incorrect side of the road, struck them. In reply to Mr Thomas witness said that the two men were crossing the road at a fairly sharp angle. There was no actual spot on the road to mark where the men were, and it was quite possible that his estimate might now be a foot or two out on either side. Jack E. Hume said that he crossed Wai-iti Road shortly before Elgin and Smith, and noticed the lights of the approaching car before entering the gate to his home. To Mr Thomas: Were Elgin and Smith still on the path when you first saw the lights?—Yes. Questioned further by Mr Thomas witness said that after the accident he did not notice any trace of liquor on the three occupants of the car. Ralph A. Holdgate described how in cycling up Wai-iti Road on the night of the accident, he ran over a hat some distance from where he noticed a car standing close to the channel on the opposite side of the road. Replying to Mr Thomas witness said that a motor-car, travelling at about 25 miles an hour, passed him further down the road. At the scene of the accident he saw the accused and considered that he was absolutely sober. The rdfod was wet. It would be difficult for a motorist to pick up-a black pbject on the road. Constable Beecroft read a statement taken from the accused on the night of the accident. Constables Abbott and Weir who were called to the scene of the accident, detailed the measurements contained in the plan before the Court. After the luncheon adjournment the foreman of the jury intimated that the jury desired to visit the locality, and this His Honour agreed to. Braking tests made with accused’s motor car, were detailed by John McKim, omnibus engineer for the Timaru Borough Council, on similar lines to his evidence in the lower Court. In reply to Mr Thomas witness said that the brakes were working efficiently. Passengers Give Evidence. Eric William Lee, a passenger in accused’s car on the night of the accident, said that earlier in the evening Nimmo, Thomson and he spent about three hours at hospital in the house surgeons’ quarters where four bottles of beer were consumed —about three rounds each. Describing the accident witness said that from J e back seat of the car, he saw the men come into view about five yards away from the car. He saw Smith’s face on an angle. Replying to Mr Thomas witness said that Nimmo was perfectly sober otherwise he would not have gone in the car with him. The two young men hesitated on the road and then jumped in front of the car. If they had not done this the car would have gone round them. Frederick S. R. Thomson, the other passenger in the car, said that the car was right on top of the young men before they came into view. The car was travelling at about 25 miles an hour. Dr McKenzie, medical superintendent of the Timaru Hospital, gave evidence as to Smith's injuries. He confirmed medical opinions submitted by Mr Campbell as to the need for close examination to determine drunkenness, and of the effect liquor had on the mind. There as no evidence called for the defence. Counsel Addresses Jury. Mr Campbell reviewed the facts in his address to the jury and called attention to a skid mark 101 ft long on the wrong side of the centre of the road. The question for the jury to consider was whether accused had used sufficient care in driving his car. Mr Thomas submitted that there was not only no evidence to say that accused was under the influence of liquor, but definite evidence that he w r as not. The speed of the car must, according to the evidence, be regarded as 25 miles an hour. The young men, attired in dark clothes, were walking on an angle across the road, and Nimmo did only what any other driver would do. He pulled over to avoid the men, but they hesitated and then jumped in front of the car. Lee and Thomson had both said that the car was proceeding on its correct side of the road, as had also the witness Holdgate, who was passed a short way down from the accident, the car in his opinion being at that time driven at 25 miles an hour. His Honour Sums Up. His Honour said that the evidence had been given straightforwardly and fairly, and there had been no conflict in this direction. The Crown must prove negligence. The Crown had conducted its case with manifest fair-

ness and had called all the witnesses it could who were connected with to accident. On the testimony of the witnesses there was hardly sufficient proof of negligence without other circumstances, and the jury had to have proof beyond reasonable doubt. No one who had seen Nimmo had said that he was drunk or unable to drive a car and on the whole he thought the jury could dismiss the question of liquor. The accused was on trial for a serious crime, and the jury must see that any proof had not left in their minds any reasonable doubt. The jury retired at 4.40 p.m. and returned at 5.1 with a verdict of not guilty. His Honour discharged the accused and added that he thought that in the circumstances the jury had returned a correct verdict.