MOTORIST GUILTY

Wanganui Chronicle, Volume 83, Issue 258, 1 November 1939, Page 9

MOTORIST GUILTY

NEGLIGENT DRIVING CHARGE INJURY TO A CYCLIST JURY STRONGLY RECOMMEND! MERCY.

I Five members of the Wanganui Salvation Army Band, including the bandmaster, give evidence in a case in the Supreme Court at Wanganui yesterday, when a taxi-driver, Henry William Mosen, was found guilty of negligently driving a motor-car, there!// causing bodily injury to Kenneth A. Fitzgerald. The verdict was accompanied by a strong recommendation to mercy. An unusual feature in the case, in comparison with others of a like nature, was that the plan produced could not show marks of any vehicles, none having been found on the bitumenised surface of the street where the acciI dent occurred. The injured man gave [ evidence to the effect that his memory I was a complete blank as from the I day before the accident, nothing of which he remembered. His Honour, Mr. Justice Smith, presided. Mr. N. R. Bain, Crown Prosecutor at Wanganui, prosecuted and Mr. R. E. Jack appeared for the accused. The member of the jury were: — Messrs. C. F. Newham (foreman), A. J. W. Candish, R. S. T. Roskruge, R. W. Abraham, E. J. Hutchins, H. I. Tomsett, P. Carmichael, H. Hoskin, H. N. Gedye, J. Scott, F. Benson and J. Caird. The case arose from an accident which occurred at the intersection of Ingestre and Harrison Streets about 10.30 a.m. on August 13, a Sunday. Accused was driving his taxi-cab along Ingestre Street from the river towards town and the injured man, Fitzgerald, was riding his cycle along Harrison Street from the direction of St. John's Hill towards town. The two vehicles met at the intersection and Fitzgerald was injured and admitted to hospital. He did not recollect anything that had happened. Members of the [Salvation Army had congregated at the corner where the accident happened and were holding an open-air meeting at the time. Hugh L. Widdowson, medical superintendent at the Wanganui Public Hospital, said that Fitzgerald was unconscious when admitted. He recovered consciousness half an houi later, but he recollected nothing of [the accident. He had severe head inI juries, an extensive fracture of the I vault of the skull. Fitzgerald was discharged on September 28 Mr. Jack: And it would be fair to say doctor, that he made a very good recovery?—Yes, considering the nature of’his injuries he made quite a good recovery. Injured Man’s Evidence The injured man, 24 years of age said that' the last he could remember was on the day before the accident coming home from Waverley at ~ , o’clock on the Saturday afternoon. He ; knew that he was the man who hac been in an accident, but he knew noth- = ing whatever of the happenings or i Sunday, August 13. He knew that he [ was discharged from hospital on Sep--1 tern her 28. . t Mr. Jack: Your cycle is a fixer wheel cycle, meaning that when the -. wheels are going round the pedals g< s round, also? —Yes. a And the brakes are cable-operate, s from the handle-bars on the rims o the wheels? —Yes. Mr. Bain: Were the brakes in goo< 0 order?—Yes. u Frederick Searle. Salvation Arm. n officer, said that seven of the ban< were grouped in Harrison Street, nea a footpath. Witness said that he sat the cyclist apply his brakes jn an a. I tempt to avoid the car, but it was to hate and the car hit the front whee lot the cycle. The motorist was dnv hng at approximately 30 miles an hou on his correct side, with the righ j wheels near the centre of the roar The cyclist was certainly comin 1 along very fast, more in the centr iof the road. The impact took plac -about the centre of the intersection Witness noticed that when the cyclis [applied his brakes that caused him t [ swerve to his right. i Mr Jack: Seeing the accident, yo j would say both of them were on the: correct sides of the road and that th [accident did not occur because eithe 'of them was on his incorrect side.jThev were both on their correct sine. I His Honour: At what stage?—The I were both on their correct sides con

ing up the road, both of them. No Application of Brakes Mr Bain asked witness whether the ! motorist applied his brakes. Witness replied that ho was of opinion that I the motorist did not see the cyclist and did not apply his brakes until [after a collision had occurred. Mr. Jack: You cannot say whether | he did or did not see the cyclist?— 'No. [ John Canty, master of the Salvation [Army Band, gave corroborative evidence, and also estimated the speed of the motor-car round about 30 miles an hour. The car, he said, was travelling near the centre of Ingestre Street, but on its correct side. The cyclist, witness said, travelled along Harrison Street on his correct side, midway between the grass at thd side and the centre line of the road. Mr. Bain: Did you form any estimate of the speed of the cycle. I consider that both the cyclist and the motor-car were travelling about the same speed, 30 miles an hour. Witness was of opinion that the

cyclist attempted to swerve, but witness did not see the car slow up until the accident happened. Mr. Bain: Did you see the motorist, look to his right or his left? —I consider that he looked towards us, towards his left. Do you think the motorist applied his brakes?—l consider that he applied his brakes as soon as the impact was felt. I don’t think he saw the cyclist at all. Mr. Jack: It be correct to say that the cycle hit the side of the car rather than the front? —Yes. To Mr. Bain: I consider the wheel of the car ran over the front wheel of the cycle causing the cyclist to be flung into the car. Acquilla Canty, Salvation Army bandsman, corroborated the evidence of the other two. He said that there were two cyclists coming along Harrison Street, a boy in front of the man who later was injured. The boy cyclist oassed in front of the car when

it was 10 yards back from the centre point of the intersection. The second cyclist met the car fair in the centre of the intersection. The cyclist saw the car a moment before the impact, tried to swerve to his right, but did not have sufficient room, so the impact occurred. Question of Speed Mr. Jack: You told us in the Lower Court that the speed of the motor-car would not be more than 25 miles an hour? —That is correct. And it would be right to say that neither the motorist nor the cyclist was on his wrong side?—Yes. Albert Ruslin, another bandsman, also gave evidence. He thought the car was travelling at 30 to 35 miles an hour. Witness said the cyclist was travelling fairly fast, but he could not estimate the speed. Mr. Jack: You will agree that it is a different thing judging speed when you are in a car and when you are on the ground?—l suppose it would be. If you were told that the cyclist was travelling at 35 miles an hour, what would you say to that? Witness replied that he had reading glasses on at the time and that made it difficult for him to see the cyclist. Mr. Jack: If you had reading glasses on I take it that that would make it difficult to see the car, too? —I could see the car quite plainly. Frederick Charles Howard, another bandsman, estimated the speed of the car at 30 miles an hour and that of the cycle at approximately 25 miles an hour. The cyclist was sitting erect, with right hand on the handlebars. The cyclist came on to the intersection first. Police Evidence. Constable J. B. Wakelin said that Mosen had told him that he had not seen the cyclist approaching. Constable D. A. Almond produced a statement which he said tne accused had made. In this it was stated that accused had no seen the cyclist prior to the accident and did not know which way the cyclist had been travelling. Mr. Jack did not call evidence, but in an address to tiie jury, said that it was not negligence on the part of the accused that was, in effect, the cause of the accident, ft might be suggested by the Crown that the motorist failed to give way to the cyclist who was approaching from the right, a Breach ol , a regulation, but the Court was not concerned with the breaking of a [ regulation, but with whetner tlie operative negligence of the accused [ was the cause of the accident. The speed of the motorist wjus shown by the Crown to be 25 to 30 miles an hour. That was not an unreasonable , speed for Ingestre Street, in that locality, counsel declared. It was ail ' a matter of the circumstances of the [case. When they turned to the cyclist ,la different picture, was presented. It I the operative negligence of the , i cyclist was the cause of the accident, ' [then the Crown had failed to prove its i case. To have come down Harrison . Street, aproachlng a busy intersection, ’ I with a strong wind behind him, at 2b r I miles an hour, was, counsel suggested, 1 ! grossly negligent. That was not all. ’ : The cyclist had had only one hand on ’ [ the handle-bars and was riding a ' fixed-wheel bicycle with brakes [ operated from the handle-bars. He r ' could apply only one brake. 1 i "He was looking for trouble, gentleL men, and we all regret he got it,” ’ said Mr. Jack. "It was the merest e ! fluke that a motorist, the accused, e i driving as he did every day of the •’week. should have had his attention it drawn by the band at the precise o [moment that the cycle struck the side of the car. That, I submit to you, u I gentlemen, i s a reasonable view u r take of the case.”

The Summing Up. His Honour, summing up, said that the jury had to concern itself with the facts only. The accused, he said, was charged with negligence, which meant that he did not take reasonable care. The mere fact that another was negligent was not an excuse. What the jury had to consider was whether the evidence had proved to ns satisfaction that the negligence of the accused had entered mto the cause of the accident. The facts were really not in dispute and the jury knew that the motorist came up the road at 30 miles an hour, did not look to his right and, on his own admission, did not see the cyclist. The jury might say at once that that was a breach of the. righthand rule. It had to. decide whether that failure to look to the right entered into the cause of the accident. Other points to which the attention of the jury was directed by His Honour referred to the position of the motor-car near the centre of the road, whether it should have been more to its left, and whether its speed in that locality was excessive. The jury took half an hour to arrive at its verdict. Accused was remanded on bail until Friday. MIDDLE-AGED MAN ACQUITTED CHARGE OF INDECENT ASSAULT In the Supreme Court at Wanganui yesterday a middle-aged man, William Alexander Chisholm, was found not guilty of a charge of indecent assault on a girl of eight years of age. The case arose from happenings which the ' Crown alleged occurred at.Aramoho on October 16. His Honour, Mr. Justice Smith, presided. The Crown’s case was presented by Mr. N. R. Bain, Crown Prosecutor at Wanganui, and the accused was I represented by Mr. C. H. Ciinkard. ; The members of the jury were ! Messrs. G. I. Jones (foreman), A. W. Gray. G. C. McLauchlan, G. Richards, ’ W. Martin, W. G. Coombes, N. Neil- ’ son, A. Murch, J. F. Osborne, W. B. Broadhead, A. G. Hucklesly, T. Coburn. 1 The jury retired Just before lunch and returned at 2.35 p.m. with a ver1 diet of not guilty.