Hamilton Spectator Thursday 11 August 1910
Penshurst Motor Accident Action for Damages
The case Cameron v. Hutton was resumed in the County Court at Hamilton yesterday before Judge Neighbour and a special jury of four.
Edward Cameron Penshurst, fruiterer, claimed from Stanley Hutton, of the same place, grazier, £500 damages, for injuries - which he had sustained through being run over by a motor-car owned and driven by the defendant.
The accident occurred on the night of April 8.
Mr. Westacott appeared for the plaintiff and Mr. Kilpatrick (instructed by Mr. Molesworth) for the defendant.
The plaintiff's evidence had been taken on the previous day.
The plaintiff, being recalled by his Honour, said “When I was struck in the back I was about level with the back wheel of the cab. It was the right leg that was struck, below the knee.
To Mr. Westacott: The cab was about three feet away.
Frank Lisle Olle stated: I remember the night of April 8. After seven o'clock Archie Linton and I were going to be Penshurst railway station. This was 7.10 or 20. We started from the plaintiff's shop. When we got past Collins's we saw a motor-car coming round the corner the cab was leaving Mrs. Olles at the time. The car was traveling at least 12 miles an hour, probably 14 or 15. It was fairly dark. The motor had a very poor light which would only show a warning four or five yards away.
To Mr. Kilpatrick: I have not talked over the evidence with anyone except father and mother. When the motor turned the corner, it made a noise as if the brakes were gripping. That was what made me turn round. Anyone of average hearing could bear it. Linton said it was a poor light for a motor-car to carry. No one told me the rate at which the motor was going. I did not mention that to Linton. I did not have a good idea of rates. A cab travels at eight or nine miles an hour. The plaintiff never had a conversation with me about the case, except that he told me he would summon me as a witness.
To Mr. Westacott: We saw the motor coming round the corner when we passed Collins's shop. That is a good distance from Mc Nee's. Except for the noise made by the brakes in turning the corner, the car was silent.
Mr. Kilpatrick: We admit that the horn was not sounded.
At this stage the court adjourned for a few minutes to enable Dr. Laidlaw, in conjunction with Dr. Sweetnam, to examine the plaintiff's injuries.
On resuming, the evidence for the plaintiff was continued.
Dr. Laidlaw stated: I was present with Dr. Sweetnam and others just now in an adjoining room. I heard what the plaintiff stated he had suffered. I have examined Him. Assuming a motor-car passed over him. I don't think it would be possible to state what future injuries might result. The first result would be shock and he might have innumerable injuries. I could not give a prognosis. If I had seen the plaintiff on the date of the accident, I could not have said what injuries might result. The cuts on the head would not indicate anything to my mind. That is only what the plaintiff feels himself. That is a subjective symptom. I don't say that is an imagination, the giddiness indicates nothing. Such an accident as that described would probably cause nervous shock. I am not an expert in mental or nervous diseases.
To Mr. Kilpatrick: I found that plaintiff had two cuts on the head. There were no bones broken or permanent injuries. Giddiness might mean local lesion, or imagination, or invention. I could not say whether the affections he complains of is real, imaginary, or invented.
Leslie John Eales stated: I am a blacksmith at Kirkstall. I was in Penshurst on the night of April 8th about 7.20 I saw a motor-car in Bell Street. I was waiting to go to the railway station. I had a bicycle with me. I saw the motor-car corning around the corner into Bell Street. It was defendant's car. It had bad lights for a motor-car. It would take them all their time to pass for buggy lights. When I first saw the car I was standing in front of Collins Bros. store. Just as the car came round the corner I noticed the cab move from Olle's, about opposite Collins's. I was waiting to follow the cab to the station, but when I saw the motor I thought I would wait for it. As it came past I jumped on my bike, and followed it 30 or 40 yards. It was almost on the right-hand side of the road, but it had only gone a little way when I saw it cross the road. It was endeavoring to pass the cab.
It ran up an embankment between Cameron's corner and Mc Nee's corner. That was on the left side of the road going to the station. I heard a lady in the car singing out. She just let out a yell. When it ran up the embankment I was within a few yards of it. The front of the car was level with the back wheels of the cab. I followed on to the station then. I have been amongst horses since I was a child. The cab was going between seven and eight miles an hour. The car was going at double that pace. There was room on the right side of the cab for the motor to pass. The car did not make much noise as it passed. The night was fairly dark. It was cloudy. The accident occurred off the metal.
To Mr. Kilpatrick: I have not spoken to anyone about the accident. Plaintiff asked me about the light. I went to him and told him what I knew. I left Penshurst three days after the accident. No one was with when I first saw the motor car - I did not see Olle or Linton there.
Mr. Westacott: Olle said he was down below Collins shop.
Witness: I was standing on the road. .The lights of the car attracted my attention. I did not hear the brakes of the car as it turned the corner. My hearing is not good.
The cab was on the embankment, too, when the car overtook it. It pulled up to let the car pass. I don t know why the car deliberately ran up the embankment on that side. I thought it must have a lunatic driving the car. (laughter) it drove from one side of the road straight up the embankment. 1 could not say how far it ran up. The two front wheels were up on the embankment. It was trying to get around the cab. I know plaintiff. I was in his shop that night. The lady called out when the car ran up the embankment. I have not seen any boulders projecting from the slope at this spot. I can see dark marks on the photograph produced. They look like rocks.
To Mr. Westacott. My friendship with the plaintiff does not affect my truthfulness.
To Mr. Kilpatrick: The motor had a bad light. I could see it from Ritchie’s corner. You could only see a light of a few yards ahead. I thought it was candlelight.
J. J. Collins stated — I am a storekeeper carrying on a business in Bell Street Penshurst. I remember the night of April 8. On the morning of the 9th in consequence of what I heard, I saw Mr. Chesswas under his veranda. I went with others to a spot in Bell Street on the left side, going to the station, below Mc Nee's store, within a few of the end of the footpath on the roadside. I discovered that the earth was all churned up, and I could see motor car marks leading to this from the road. The wheel marks turned to the right passing that spot and led out to the main road again. The marks came off the road 25 or 30 feet before the site of the accident, and there were marks as if the vehicle had been knocked. Mr. Chesswas, Mr. Morris, Mr. Pergandie, and Mr. C. Olle were also present. I saw Morris pick up a piece of the buckle from a man's trousers. He handed it to Mr. Chesswas. On the 9th I saw the plaintiff in bed. His bead was swathed in bandages. I saw him again next day, he was still in bed.
To Mr. Kilpatrick; it was about 8.15 in the morning when I went to the scene of the accident. There are no boulders at all projecting from the earth at the scene of the accident. I have never seen them.
This closed the case for the plaintiff.
Mr. Kilpatrick then opened his case for the defendant, which was briefly that the accident was due entirely to plaintiff's negligence, and that the defendant had taken every reasonable precaution to avoid an accident. The defendant in a spirit of humanity had offered to the plaintiff expenses out of pocket, but he added: “at the same time it’s your own fault." His statement on that occasion could not be taken as an admission of negligence.
The following evidence was called for the defense: —
A. R. A’Beckett stated — I am a licensed surveyor and shire engineer for Mount Rouse. I made the plan of Bell Street produced. The width of the street varies from 90ft. to 102ft. On the north side, it has born sloped down from the curbing to the metal. The slope at the point near McN'ee s is one in 12.2. There is an easy gradient from Martin Street to French street. The slope is of brown soil and rocky formation. The rocks are exposed in some cases some inches above the surface. I don't recollect any prominent rocks projecting near Mc Nee's corner.
To Mr. Westacott: I don’t think a skillful motorist would run up these slopes. I suppose the cab-horse would go down that hill 7 or 8 miles an hour. I won't swear that the footpath has a curbing as far as Mc' Nee's.
To his Honour: There is nothing to prevent a cab or motor car leaving the road and going on to the slope on either side or driving on the slope.
David A. Stanley Hutton. the defendant stated — I am a grazier, residing at Eden, Penshurst. I own a motor car. I have driven cars for about 12 months, and have had expert training from April last. I knew everything about driving cars and was quite capable of driving them. I have driven to Melbourne, but don't remember whether it was before or after the accident. I got the car in February. I have acted as my own chauffeur and drove it nearly every day. I had on the car the ordinary kerosene motor lamps used on the night of the accident, and they are in the same condition now as then. The car when I bought it was new and the lamps were new.
On the night of the accident, I was driving towards the station. My wife and Miss Whitehead were in the back of the car, and I was seated in front driving. When coming into Bell Street the lamps were burning brightly. They could be seen a mile away.
His Honour: The point is how far he could see.
Witness: They threw light ahead about 20 yards. I could easily see anybody walking 20 yards ahead and I could see if anyone was walking 25 yards ahead. If a dray were in front I daresay I could see it 20 or more yards. When 1 turned into Bell Street I was traveling three or four miles an hour. From the corner to the scene of the accident I maintained the same pace.
His Honour: That would be a walking pace?
Witness: Yes, You could drive slower down a hill than up a hill, because you can do without the engine. I saw the light of a vehicle, which was standing in the street at Olle's house, on the right-hand side. 1 saw it as soon as I turned the corner. When I got within 15 or 20 yards the vehicle started to drive on in the direction of the station. It drove about the middle of the metal; I was about 15 or 20 yards behind and on the left-hand side. As we went on there was no change in position. When I got between Pearson's and Mc Nee's somebody stopped in front of the car. I saw something in front of the mudguard on the near side, and I felt the front wheel go over something, and the back wheel went up also. By that time I had stopped the car. When the bump happened the cab was in the middle of the road, 15 or 20 yards ahead of me, and my car was on the left-hand side of the metal.
The near side wheel was on the left edge of the metal, it may have been in the gutter, but not on the slope. When I pulled up the car and found what had happened, I drove it on a few yards, when I stopped and got out a man was on his hands and knees getting up. He said, "Wait a minute." I asked him was he badly hurt, and told him to get into the .car and 1 would take him to a doctor. He got in without my assistance. I backed the car up Bell Street as far as Ritchie’s hotel. There was no room to turn on the metal. None of the wheels of the car went up on the embankment; there is no foundation to the statement that the whole car was on the embankment for a few feet before the place of the accident. I asked the man who he was, and he said, “Ted Cameron."
He said he was trying to get into the cab and did not see me. The plaintiff was then treated by Dr. Sweetnam. He then comes out, and 1 drove him to Mrs. Black's, where I left him. I went to see him next day. He was in bed. I said I was very sorry I had run over him. I can't recollect saying anything else. I saw him twice after that. On the following Wednesday he was up, dressed, in a sitting room, and, I think, reading. I told him I was willing to pay his out-of-pocket expenses, but nothing more, as I thought it was entirely his own fault. He made no definite reply.
I had no other conversations with him. I could not see anyone approaching on a dark night on the side at the back of the lamp. I was watching the cab. I could see the full width of the metal. I was looking ahead, and not from side to side. The car was in the fastest gear, and from time to time I disconnected the engine, which made the car go slowly. I could not swear that the gear was off at the time of the accident. It would have been possible to pass the cab on the left by going on the slope, but it would be very rough, on account of the stones.
To Mr. Westacott: I believe I am the only one out of five swearing the truth. I swore in my interrogatories that I had been driving for six months. I now say it was twelve. Acetylene lamps are more usually employed than kerosene for motor cars. With my lights, I could not see an object 200 yards away. I say kerosene is a bright, brilliant illuminate. Before April 8th I had only driven a car three times until I got my own car in February. I had not had six months' experience, but my experience started six months. I did not toot the horn because the cab was going in the same direction. I did not know that the regulation was in existence.
His Honour: A man who drives a motor car is bound to make himself acquainted with the act. It is no excuse for him to say he did not know.
Mr. Kilpatrick contended that an approaching car means a meeting car, not an overtaking car.
His Honour said that the section would apply to a car approaching a man who was crossing a road.
Mr. Kilpatrick said if a car did not wish to pass a car that was in front going in the same direction it would be absurd to sound a horn.
Witness (continuing to Mr. Westcott): I still swear that to the best of my belief I was only going two or three miles an hour when I turned into Bell Street the cab would be about 120 yards ahead of me. I will not swear whether the engine was connected or not at the time of the collision. I had the fastest gear on. I suppose the cab-horse could go up to eight or ten miles an hour. I am a native of Penshurst and knew when the train comes in. It did not strike me as funny that the plaintiff should be trying to get into a cab that was fifteen or twenty yards away. I instructed Mr. Molesworth to see the plaintiff. I can't say why it is that I never offered to pay expenses until the third interview. Neither lady screamed. I had occasional nightmares over the affair. I won't swear that I did not say the next day “I ran over that man Cameron last night." It is incorrect that the cab swerved to the left to let me pass.
Re-examined by Mr. Kilpatrick:
When I felt something under the wheel, I concluded it was somebody, and I thought it the most humane course to drive on, so as to get the car off him. When the cab began to move from Olle's, it was 15 or 20 yards ahead, and It kept about that distance as I followed at the pace of the cab, about four or five miles an hour. I thought plaintiff ran across the front of my car to catch the cab.
To his Honour:
I preserved the same distance between the car and the cab. I did not see the horse. I was at a walking pace. The cab may have been trotting slowly I can give no information on that.
Vivien I. F. Hutton, the wife of the defendant, corroborated her husband's evidence as to what occurred on the night of the accident. The car was practically going at the same speed as the cab, which was about ten or eleven yards in front at the time of the accident. She saw the plaintiff in front of the car. He was crossing from the left. The car never left the metal.
To Mr. Westacott: I have been talking about the case with my husband and. I think the cab horse in front was trotting.
Alice Whitehead, who was with Mr. and Mrs. Hutton in the car at the time of the accident, gave her version of the occurrence. The car was going at four or five miles an hour. The cab kept about 15 yards ahead, and it was 10 or 12 yards ahead when the accident happened. The car had not left the metal.
To Mr. Westacott: She heard the plaintiff, when taken from beneath the car, exclaim: "Wait a minute”. She said, “Look out." Mrs. Hutton called out "Oh." She did not look to see if the car was on the metal. She judged merely from the feeling.
Mounted-Constable Bell, stationed at Penshurst, said he was on duty at Richie's corner on the night in question He saw defendant's car pass. The lights appeared to be bright. He would say he was going at about four miles an hour. He knew nothing about the accident.
To Mr. Westacott: The lights would shine out 10 or 15 yards. He spoke to the plaintiff the previous night. He told him it might have been better to settle the matter. He spoke to plaintiff on the street. He walked out of the hotel with the plaintiff. He knew he was a witness for the defendant. He thought there was no harm in speaking to the plaintiff.
After the interview, the witness spoke to defendant’s solicitor. He made no statement about the case, except to Dr. Sweetnam.
To Mr. Kilpatrick: No one suggested to me that I should speak to the plaintiff last night.
The case was then adjourned to the following day.
Continued on Page 3
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