MANSLAUGHTER CHARGE

Otago Witness, Issue 2895, 8 September 1909, Page 3

MANSLAUGHTER CHARGE

! TRAM CONDUCTOR CONVICTED. CFboji Otra X)wr GoEaispoHDßßcr.) , ' AUCKLAND, September 5, At the' Supreme Court on Saturday Herbert Birfcett, -conductor of the tram concerned in the Onehtinga tramway fatality whereby Mrs Anna Horenell. late of Christchurch, met Jier death oh June 10, was convicted of manslaughter. i The motonnan (Hally) was acquitted. In summing up m Birkett's case M,r ' Justice Edwards made some important remarks. He, said that the jury must not be led away by mere sympathy for the accused. The matter involved thesafety of hundreds of thousands of .persons who travelled by tram. The question which the jury had to decide was this : Did the' conductor exercise to .the reasonable . extent required by law iand common sense the care in the handling of , dangerous machinery necessary for the protection of the public? The necessity for doing this was fully recognised in the tramway company* set of rules and regulations,, which ap- • peared to have -got into a-, state of Goni fusion, but ' a mere breach 'of the rules" | of the company, as the private rales of I the* company, would not render the v_ac-_v _ac-_ 1 cused liable unless such breach involved I a breach of . the common law duty- inI cumbent upon persons in charge .of Isram ! cars to so act as to/ avoid all unneces- ! sary danger. Looking at the matter i ixoml that point- .of vie^ ._ did not the ' facts .speak for themselves? Counsel for the 'accused asked the jury to say that , the.., accused was „ justified ' whan Rowe came out to the front "platform in assuming -that he was the person who rang the bell, and that he was the only person who wished to alight. They were asked, therefore, to declare thftt ' the accused was justified in- taking 'no reasonable precautions to '.see that nobody else wished to alight, In the opinion of the learned judge- that was not a right view to take.- -It did not matter whether the bell was" rang once. twice, or 20 times,. What did matter was whether it wag the dnty of the conductor to use all reasonable' precautions at Captain street, and whether, in fact, he did' so. The conductor from the front ' platform looked round one side of his car only. If he had looked through the car he would have seen that three ladies were in process of alighting. . By the verdict they were asked to give by counsel for the accused they would be asserting the doctrine that a conductor of a iramcar, when one percon had alighted, was justified in starting the car again without taking the precaution to ascertain whether others desired to alight. The jury should" not assert any such doctrine. The regulations of the Tramway Company ought to be observed by \he employees, and it was not for the chief inspector to say what those regulations meant. The conductor ought unquestionably to have been on the back nlafr form. Smoking was not in itself an offence .which could render him liable, but probably it was the cause of* his being on the front platform. The whole thing came down to this : Did he take reasonable precautions in restarting his can without ascertaining what a casual glance would have shown him ? The jury must not be influenced by the seriousness of the consequences if they found a verdict against the accused. They had, indeed, nothing to do with that. The duty of passing sentence was the judge's duty — a duty than which none was more responsible or more unpleasant, a duty which no judge would not gladly leave to some- other tribunal if he could. The jury, in bringing in' a verdict of guilty, strongly recommended Birkett to mercy. The accused will come up for eentence on Wednesday.