NEGLIGENCE UNPROVEN

Chronicle (Levin), 1 July 1948, Page 4

NEGLIGENCE UNPROVEN

Gharge Following Fatality Dismissed Arising; out of a recent accident >n the Ohau East Road in which a , roung man, Lenard John Renkin, jf Levin, was killed instantly, the Iriver of the heavy truek involved, jeonard Lewis Close, employed by he Manawatu Meat and Coicl Stor,ge Company, was charged in thq^YjM iagistbate's Couft, yesterday witli>f# legxigently driving the vehicle hereby' causing the death of Ren:in. After the evidence of eight perons, called by'the police, had been leard, the bench, comprising .Vlessrs. D. J. Gardiner and J. B. Irey, dismissed the case on the ;round -that negligence had not >een estabnshed. Mr. J. P. Bertram. tppeared for defendant. The accident occurred on Ohau Sast Road, which joins the ma,in lighway at a point almost opposite ;he Kuku-Manakau dairy factory. ' ^eceased had been to an evening it a house there, and, with four rther youths, had requested a/ ide jack to Levin in the truck. - ; . Called by the police, Dr. Thomas Senry Puilar, pathologist, of the . Palmerston North Hospital, gave evidence of his examination of the Dody and stated that from the .njuries sustained deceased must aave been thrown on top of his aead. "jPhe injuries were of such a ciature that they would have caused .nstantaneous death. Foreman of the Manawatu Meat a.nd Cold Storage Company in Levin, Thomas Henry Ireton, said bhat in aecordance with the pracbice of the other drivers for the company, and with the approval of bhe Arai, the defendant kept his vehicle at his place of residence. A.11 the drivers und'ersrood that the • vehicles were not permitted to be used for private purposes unless permission to do so had Arst been obtained. On the night- in question Close had not had authority to drive the vehicle to Ohau East Road. The company's Aeet of trucks was greased by the Levin Service Depot and if any defects were discovered the vehicle was, by arrangement, sent over to Peterson's Garage, which maintained _ the Aeet, -continued Ireton. On Friday, June 11, the truck driven by defendant was greased and it was found that a new generator would have to be Atted.- The truck was . accordingly taken to Peterson's. Events Preceding Accident The next witness, Rameka Wehipeihana, a driver also empmyed by the company, told the court that on Saturday, June 12, a party was conducted at his home in Ohau East Road to ceiebrate his birthday. At 10 p.m. defendant, his wife and another man arrived at the home of witness. In reply to a question from Sergeant W. Grainger, witness said that they did not bring liquor with them and that all were sober. Some of the others, however, brought Liquor, but he did not know how much or who brought it. Sergeant Grainger: Neither you nor your father touch liquor, I beiieve? — My father does not-drink, and I very little. In reply lo a further question from Sergeant Grainger, witness said that he had noo actually seen defendant having liquor, but he might have taken some. At about 1 a.m. some youths arrived, continued witness. They had stayed till the teimination of the parTy, which was about 2.30 a.m. He had. seen Close leave with his wife and friend,. and had gone out with them to see them off. He would say that Close was sober. Close was driving with his wife sitting next to him and the other man on me lar side. It was impossible to turn the truck round in front of the house as the road was narrow but, in accordance with witness' own practice, defendant had -driven the truck four or Ave chains up the road and turnea it in-a driveway at what was known as Bowling's corner. Witness said he had watched the truck being turned and also its return. The truck was, in his estimation, being driven all right. Five youths standing in front of the house had, as the truck passed the house, requested a lift lo Levin, continued witness. "He wasn't too keen on doing so, .but eventually gave them a ride." They had climbed on the tray of the truck, which had high sides, and witness * said he had helped to put up the tail board. Mechanical Condition of Truck Cross examined by Mr. Bertram, witness said that the corner ' was an awkward one, particularly when turning a truck, and that it would require careful driving to turn a , car there at night. aThe proprietor of the garag§ ii which repaired the trucK on the f preceding Friday, Peter Alfred ' Peterson, said that a new generator had been 'Atted, but otherwise the vehicle was sound. He had tested the vehicle himself and had found the .brakes, steering and ■ lighting in gOod order. Following the accident, 'he had inspected the trutk aT the scene of the mishap to ascertain if it could be driven back, but found it could not be driven under its own power. After detailing the damage. which he estimated to be between £250 and £300, Peterson said that when the truck was in tow, he nad steered it and found the brakes to be quite good and the steering reasonably fair. ■ Asked by Mr. Bertram if, having regard to the nature of the road, 15 to 20 m.p.h. wouid be quite a reasonable speed. Witness replied: "Quite reasonable." From his observations the vehicle's damage was consistent with that of a vehicle turning over, pivoting on its left mudguard and then on to the (Continued on Page 9)

. . .11 in ■. .| > 1 • (Continued from Page 4) left-hand corrier of the tray and upside down. . . • • •' Asked by Mr. Bertram if it would be natural for a driver who felt a , car slippihg and travelling down a certain distance to try.; to get back on to the road rather than blake or go stfaight ahdad, witness said it would be natural to trv and' rer gain the road. "" Iri reply to a question from the bench, Peterson said that he did not consider the accident was caused by f aulty steering gear. ' • " A passenger in the cab of the. vehicle, Noel Montgomery Stewart-, ' motor driver of Levin, . descrlDed the nature of the road ovef whicli the vehicle had passed-. Hte said he considered that' defendant was driving' in a no'rmal manneL Describing the turning of tha vehicle at Bowling's corner, he sa,'id that any one riot knowing the road might find the operation awkward. Defendant had negotiated thd preceding^ bends quite . safely, and was following iri the -tracks. made by other vehicles at froni 15 to 20 m.p.h. Just before the accident the truck did not seem to respond to the right lock and he had made a remark to this effeci to defendant half way round the turn at the top of the hill, but liad recelved no answer. Despite defendant's efforts, the truck crept grqdually .to ;the left of the road. The" next thing he knew was that the vehicle r Was turning over, and - it finished up upside down. After. he had got out of the cab he walked bsick up the hill, where he saw a man. lying on his back. He appeared to be dead. Passengers Tell Their Stories One of the occupants of -the tray of the vehicle, Ivan Edwa'rd Learmonth, motor mechanic, of Levin, said that, together with four oth.ers, he attended a darice at. Levin on the Saturday night. At 12.30 a.m. they went by taxi to the house in Ohau East Road. They secured a ride back in defendarit's truck at about 2.30 a.m. Ail five had sat o'n a , tarpaulin. He: could not -^ay if the tail board of the vehicle was up or not, and he described the subs'equent speed of the truck' as "steady going." He thought he felt a "pretty big bump on the road," and the next he knew 'he was "spun round in the air.". When he cairie to he found himself on the ground on top of deceased, with another man on top of him. • Two of the other pasSengers, Patrick John Cameron' and Robert Reginald Giles also detailed their experiences. Both stated that they thought the tail board of the .truck was down when it moved off. They were not concerned at the way the vehicle was being driven, and considered the speed was the average for the ciass of road. Constable A. T. Kelk. after describing the scene on his arrival, said that Close was then sober, but that his breath smelt slightly of liquor. He had admitted that he had not had authority to take the vehicle out, and that he had had two or three medium glasses pf beer but did not consider it sufflcient to affect' his driving. Defendant was 25 years of age. He had held a driving licence for ten years and adieavy vehicle driving licence for two and a half years. He had stated that he had been driving the vehicle at about 15 iri.p.h; As he had turned the right hand" bend at the top of the hill, he had felt the truck pull to the left and it did not pull to the right as freely as was usual. He did not apply his brakes. because he did not think it advisable considering the cant on the road. In a written statement, continued Constable Kelk, Close had said that he was blind in one eye and that this fact had been declared on both his licences. He had never found it a handicap when driving, and said it did not affect hlm in any way. After describing in detail the geography of the area, Constable Keik said, in answer to Mr. Bertram, that once in the position the vehicle had been in it would be difffcult to drive it back on to the road, though the normal reaction would be to attempt to bring it back. Witness added that the night was exceptionally dark and a driver, not used to the road, would not know what lay ahead of the verge. Submissions By Defence Submitting that there was not sufficient evidence to support a charge of negligent driving, Mr. Bertram quoted a legal text book on the subject compiled by Dr. O. C. Mazengarb. There was not evidence, he said, of imprudent, unreasonable speed or conduct on the part of his ciient. It was possible that he had committed an error of judgment, but from the tyre marks it was shown that he had actually held the vehicle on the shoulder of the road for 139 feet, which was rather a good achievement. It would be all over in a matter of a few seconds. He submitted that 15 or 20 m.p.h. was not an unreasonable speed for the type of road. There was also tne evidence that his driving had nbt caused the passengers anxiety. When Stewart had spoken todefendant, the latter had not. answered, which showed that he was apparently concentrating on correcting the drift. He submitted that there might have been an error of judgment coupled with lack of visibility for a tlme when the truck topped the hill. After a retirement of a few minutes, the bench dismissed the case as stated- above.