MANSLAUGHTER CHARGE.

Taranaki Daily News, 24 May 1922, Page 6

MANSLAUGHTER CHARGE.

A FOOTBALLER’S DEATH. CASE AGAINST A NATIVE. VERDICT OF NOT GUILTY. The afternoon of April 8, which was such a noteworthy one for members of the Opunake football team because they won a seven-a-side tournament at the Manaia sports that day, had what turned out to be a tragic ending for one of the team, Thomas Duffy. He was one of a party journeying home in a motor-car driven by E. Whitham, of Opunake, when a collision occurred with a dray driven by a native. As the result of the accident Duffy sustained injuries from which he died ten days later. Details of the accident were recounted in the Supreme Court at New Plymouth yesterday, when the native, Rangi Maha, was charged with committing the crime of manslaughter by driving a horse and dray after sunset without lights and on the wrong side of the road, so that he collided with a motor-car in which Thomas Duffy was being driven, and caused the death of Duffy on April 18. The following jury was empanelled Messrs. E. R. Gilmour (foreman), J. McGrath, J. E. Bond, W. Palmer, T. A. Ambrose, G. S. Early, W‘. F. Jenkins, W. F. Cribb, W. Anderson, T. Murphy, H. Kendall, and J. E. Nixon. Mr. C. H. Weston conducted the case for the Crown, and Mr. P. O’Dea defended accused. All witnesses were ordered out of court, on the application of the defence. THE ACCIDENT DESCRIBED. On the evening of April 8, between six o’clock and 6.10. the Crown Prosecutor said, a motor-car left Manaia to return to Opunake. It was a Ford car owned by Whitham, a hotel proprietor, of Opunake. He was driving, and a passenger named Lusk also sat in the front seat. In the back there were Duffy (deceased), on the left-hand side, and Mason, on the right. The weather was fine, with some moonlight, but there was some mist, which appeared to lie in the dips on the road more than on the rises. There were no . lights on the car when it left Manaia, but after proceeding on the road for about three miles, Whitham turned on the lights. His evidence was that during the trip he had been doing about 25 miles an hour, but later on slowed down to 20 miles. The brakes were in good order, and everything went well until they reached a spot about one mile and a quarter on the Manaia side of the old hotel, where the collision happened.

The other party to the collision was the accused, who had spent the afternoon at the old hotel. In this connection Mr. Weston said the Crown did not wish the jury to jump to the conclusion that the native was drunk when he left the hotel; in fact the evidence would rather go to show that he was not intoxicated. Rangi was at the hotel between two o’clock and 5.30, and had about five or six drinks, or perhaps more. He was employed by a man named Dixon at the time, and had brought a horse and dray to the hotel. He left on the return journey about 5.30, and as the horse had only a temporary shoe on one foot, the native was taking things steadily. The collision occurred one and a quarter miles beyond the hotel, about an hour afterwards, namely, at a quarter to seven.

THE COLLISION. Reverting to the journey of the motorcar, the Crown Prosecutor said that the driver was not aware of the approach of the djay till the lights of the car showed up some vehicle in front of him. He was on his correct side, and directly he saw the other vehicle coming on the same side he shut off the benzine and got. his brakes handy. He drove on for a few more yards, and then he saw that the vehicle did not alter its course and was remaining on its wrong side. When he realised this he found himself within a few yards of the vehicle, and decided there was only one thing to do, namely, to make a hard turn to the wrong side: if he did anything else he would meet the vehicle ahead. Whitham jambed his foot on the brake and shut off the engine, and proceeded to make the turn, and up to a point he succeeded; but, unfortunately, not quite well enough. The site of the accident was viewed shortly afterwards, and it was seen that, in turning, the wheels of Whitham’s car had scoured up the gravel, and he stopped so quickly that the car was pulled up with the back of the car near the front of the dray and about half a right angle to it. The shaft of the dray caught the rear stanchion of the hood on the car, pushed it out, and must have struck Duffy, lifting him clean out of the car. The wheel of the dray struck the car just where the rear mudguard met the footboard. Duffy was found in the road behind the car. The occupants of the front seat of the car, Whitham and Lusk, said that when they first saw the dray they could not see the native driving, but after the accident they saw the driver sitting on the floor of the dray towards the rear. One of the horses commenced to move again after the accident, and Lusk jumped out and seized the head of the animal. The first thing said by accused then was: “What are you stopping me for?” Lusk and Mason moved Duffy to the side of the road, and it was suggested that they should go to Opunake or Manaia for medical assistance. Accused suggested that the best place would be the old factory. This was a mile away, and Rangi accompanied them back to the factory, from there they communicated with the doctor at Manaia. It was alleged that when the native got out of the dray he staggered, but it was understood that accused naturally staggered when he walked. The evidence was that he seemed rather stupid about the thing. He wanted to know whether he was to be paid overtime for what they were doing, which, counsel thought, was rather stupid and ill-timed under such circumstances. Witnesses seemed to agree, however, that the accused was in possession of his senses. RULES OF THE ROAD. After communicating with the Manaia doctor, Whitham drove on to Opunake for the doctor, in order to ensure medical assistance being sent. While in Opunake he picked up Constable Clouston, and went back to inspect the site. Duffy was put into a private hospital at Maaaia, but in spite of everything that was

done for him, he died ten days later. His injuries were of a shocking character. The lungs were affected, and pneumonia set in.

On these facts, continued the Crown Prosecutor, the accused was charged with manslaughter. Of course it was not murder, because the native had no intention of killing anybody; but the Crown said that his actions resulted in somebody being killed, and those actions were being done in contradiction to his duty. At the time the accident happened it was contended the accused was breaking his ordinary duty to his fellow-citizens. If anyone went on the highway, the law passed certain obligations on him; and counsel went on to deal with the law relating to the observance of the rule of the road. He pointed out/ the duty that after sunset vehicles must be lighted. There was a further common law, that if a person took a vehicle on the road he had to have it under control. In this case the native went out with a horse and dray, proceeding along the wrong side of the road and with no lights, thus breaking the obligations cast upon him by the law. CHANGED CONDITIONS. There was a further consideration which the jury would have to give to the case, and that was the present-day position in regard to motor-cars. It would be realised cars had come to stay, and they, of course, had altered the conditions of travel. Nowadays 20 miles an hour in a motorcar was a very moderate speed, and nobody could say otherwise. This had altered the whole duties of people on the road. With motors travelling at night, when the visibility was not very good, objects were not seen until they came within range of the lights. Unless everyone observed the rules of the road, therefore, accidents would occur, and, as the jury knew, did occur. The days were gone when juries were entitled to look upon a case such as this as one of a man in a motor-car going at an excessive speed, and that kind of thing. They had to view it in the light of later conditions. This was how the Crown asked them to regard it.

A plan of the locality was placed before the jury. Arthur O’Brien, architect, of Opunake, who prepared the drawing, described the formation of the road. He said there was a bank about 15 inches on the left-hand side of the road. The width of the road from bank -to bank was 33 feet, the centre portion of 12 feet being metalled. In reply to Mr. O’Dea, the witness said he was in the Lower Court when Mason said the Maori’s dray was in the middle of the road *at the time of the accident. Dr. D. B. Maunsell described Duffy’s injuries as' an extensive wound on the left side of the chest, extending lackwards about six inches and being about two inches across. After rendering first aid he took Duffy to Manaia, and telephoned to Hawera for another doctor. They then examined Duffy’s injuries under an anaesthetic. The lung was deeply lacerated and collapsed, and the heart was exposed. The doctor proceeded to describe the treatment given to the patient. Duffy recovered from the shock and appeared to be progressing favorably till the eighth day, when inflammation of the lung set in and he rapidly sank till his death on the morning of the 18th. He thought the iron attachment at the end of the shaft would be responsible for the injuries. To Mr. O’Dea: Both witness and Dr. Young were greatly puzzled at the fact that the ribs were not broken. He got to the accident about twenty-five minutes to half-an-Kour after he was telephoned. He did not think it would have made any difference if aid had arrived earlier.

CAR DRIVER’S EVIDENCE. The driver of the car, Ernest Whitham, proprietor of the Club Hotel, Opunake, gave evidence as to the collision, his statement being on the lines of the Crowh Proeecutor’ri summary. He said he asked the native why he had not kept to his correct side of the road, but got no reply. Witness had been driving a car for nine years. He was perfectly sober that night. He had three pony shandies before going to the sports and two whiskies and soda before he left on the return. The other occupants of the ear were also quite sober. To Mr. O'Dea: In the morning they passed the Oeo and Otakeho hotels, but did not stop for a drink. The lights were on. He could not account for Mason saying he did not know whether they had lights or not.

Other witnesses included D. A. Lusk, farmer, Oaonui, and F. W. Mason, seliolmaster, Pihama. The latter testified that the native said he (Rangi) did not know anything about the accident as he had arrived there afterwards. The witness was not prepared to say there were lights on the car in which* he had been riding. To His Honor: There was a bend in the road 200 yards further back. S. J. Richards, of Pihama, who came on the scene of the acicdent said the native seemed excited. He seemed quite capable of looking after a horse and dray.

Constable Clouston, stationed at Opunake, deposed to inspecting the locality after the mishap. Judging by the marks the dray had gradually moved from the side of the road until at the scene of the accident it was about on the middle of the road. Ha would not say that if this was the case Whitham would have had room to avoid the accident by passing on the side of the dray. Constable Scannell, of Manaia, gave evidence as to identifying the -body of Duffy in the Manaia* hospital on the morning of April 18. To Mr. O’Dea: Rangi Maha was a well-behaved native, a carpenter, and had the reputation of being a good tradesman. Mrs. M. J. Glengarry, wife of the licensee of the Oeo Hotel, said she saw Rangi outside the hotel about half-past five on the night of the 18th. He had some drinks in the afternoon. He was a well-behaved native. This concluded the evidence for the Crown. CASE FOR THE DEFENCE. The first witness for the defence was Daniel Oldham, factory manager at Oeo and also postmaster. He recalled the incidents of the night of the Sth, when Mason, Whitham, and Rangi Maha came to the factory to ring up for a doctor. They arirved about half-past six. He accompanied the others back to the scene of the accident in the car. He could not say whether the car had any lights. Tf there were they gave no reflection against the light of the moon. To the Crown Prosecutor. He did not think he could have been mistaken about the time. -y;

! Accused, giving evidence on his own i behalf, said he was a married man and ; had a family of seven children. He was 130 years of age. He was a carpenter by trade and had followed this occupation for nearly twenty years. On , April 8 he was working at Dixon’s farm ' and ceased work at - mid-day. On the road home he stopped at the Oeo Hotel. ! He knew there was a football tourna- | ment and was “speculating a few bob lon it.” This kept him back. . Another chap had given him all the other teams in and backed Opunake. He had a few ; drinks during the afternoon and left the 1 bar about half-past five. He was talk- , ing outside and started for home shortly ' before six o’clock. He was quite sober. I Proceeding to relate the circumstances ! of the accident, he said he was driving i along when his horse suddenly . shied on to the wrong side of the road. We felt no bump and saw no car. He was getting hold of the reins when somebody told him to stop. Next he heard another voice commanding someone to get hold of the reins. - The party then asked l|im about getting to the nearest ’phone and at their request he took them to the Oeo factory. When they asked for Oldham he asked what was the matter and Mason said they struck a Maori. Witness then realised he might be in trouble and he told Mason !to be careful what he was saying. He • went back to the scene of the accident ; with the others. He did not think there 1 were any lights on the car, either going ;to Oeo or coming back. Before they i had left his dray was removed to the ' side of the road. When they got back ;he stayed there till the end. Witness ! denied saying anything about overtime, '• remarking to his counsel: “I am not i that silly.”

The accused was cross-examined at length by the Crown Prosecutor. With regard to the drinks, he said he had a long one to start with and later reduced to mediums. On the' road home he sat on the floor of the dray with his back to the tail-board. He was not sleepy or dull. To His Honor: When he started out it was still light. He could see probably six chains, but at the time of the accident a person would not have been able to see more than ten yards. His Honor asked, if this was the case how did accused account for the fact that he did not see the car. Accused said he might have been looking away; he could not really say anything about the accident. The dray was in the middle of the road when the horse shied, but the vehicle did not really go off the metal. He had never used lights on the dray. He generally used lights on the gig, but this being broken down he had to use the dray.

JUDGE SUMS UP. Summing up, His Honor remarked on a statement by counsel for the defence that accused was charged with a very ‘ serious crime and that upon the verdict depended whether he was to be branded a criminal or not. As regards the first His Honor said he desired to point out that manslaughter had rather a terrifying sound, but was a most comprehensive term, from embracing a charge against a person who threw a stone and accidentally caused someone’s death, up to the man who, in a fit of temper, had killed someone. /.The punishment varied just as much as the nature of the crimes varied. His Hondr remarked that within the last six months he had tried two cases dealing with manslaughter, one at Gisborne, and one at Napier. In one case he had thought the circumstances justified allowing the 1 man his liberty, while in the other in- > stance a fine was inflicted. Therefore | it did not necessarily mean that fear- : ful punishment would follow upon conviction. In this case practically what the accused was charged with was causing the death of another person by negligence on his own part, or by his negligence combined with that of others. The law had been laid down many years ago, however, that if a person’s death had been occasioned by the neglect of several it was no defence on the part of one to say that the others were negligent. It did not matter whether the car had lights or xjot; if the jury thought that death was Occasioned by the collision, and that the accident was due to accused’s negligence then he was guilty. Proceeding to examine the evidence, His Honor pointed out that every person had a duty when he was driving on the road: to see he was not a source of danger to his fellows. The accused had started off without lights, which in itself was a breach ..of duty. Driving without lights at night was a source of much danger, not only to the person committing the offence, but also to others. In starting out without lights that night it became incumbent upon accused to use the greatest care, so as to avoid the consequences of his neglect. Did he, in these circumstances, use the care and caution that a reasonable person should exercise ? According to his own evidence Rangi was driving in the middle of the road. Was 1 that proper, or should he not have kept as far as possible to his correct sideeven drawing off the metal altogether? It was generally recognised that the lights of a car carried for about 20 yards, and this distance would be covered by the car in two Upon the jury’s verdict would rest what degree of care and caution should be exercised by people on the roads. After a retirement of about five minutes the jury returned with a verdict of not guilty, and accused was discharged.