MAIN ROAD COLLISION
A Dray Horse Killed The Case in Court
Before Mr. G. Crosby Gilmore (Police Magistrate) and Mr. W. McCann, J.P., at the Glenorchy Police Court yesterday, Lewis Undy, of Coleman Street, Moonah, proceeded against Reginald Harcourt, of Lampton Avenue, Derwent Park, for recovery of £30 as compensation in re- spect of actual and business loss result- ing from the killing of his horse through collision with the defendant's motor- cycle at the Intersection of Albert Road and the Main Road at Moonah on' Feb- ruary 9.
Mr. A. O. Ogilvie, K.C., appeared for tho plaintiff, and Mr. 13. AV. Turner (Finlay, Watchorn, Baker, and Turner), for the defendant.
Mr. Ogilvie informed the Court that on February 9 last, plaintiff's son, Ray- mond Undy, a boy under thirteen years of age, drove the plaintiff's cart and horse, though definitely told not to do so. The day was warm, and the boy and a friend went for a swim. On their return the accident took place. The motor-cycle ridden by the defendant hit the horse head on, breaking its left leg, splitting its chest, and swinging it round in a direction opposite to that in which it was travelling. it was claimed that the defendant was on his wrong side of the road, and was travelling at an ex-
'The plaintiff, Lewis Douglns Undy blacksmith, of Moonah, stated in evi- dence that the horse and cart were used by him for wood-carting and for the pleasure of his family. His son had been repeatedly forbidden to use the cart. On hearing oí the accident he went to the scene of it and found that although the horse was standing, its front near log was badly broken from fetlock to knee, and its chest was cut open to such an extent that a hand could be thrust into the wound. A shaft ot the cart was broken, the front board was split, and the step bent; the harness, too, was broken in several places. The police ordered him to remove the ani- mal to the abattoirs, and witness was involved in the expense incurred. The value of the horse to him was £20, and the damage to the harness £1. In ad- dition there was the business loss to which he had been put, as since the accident witness had had the expense of carting all the wood he required. The defendant's reply when called on by witness and asked what compensation he proposed to make was'that he was under 21 years of age.
To Mr. Turner: Although wit- ness son was only in his thir- teenth year, witness did not know prior to the accident that it was illegal for a boy of that age to drive the cart. He could not recall when he last ordered his boy not to use it, and would not admit that on many occasions
the boy had been seen driving it. The
killed horse had been replaced by an- other pony at a cost of £5. Witness had repaired the harness with rivets, and was now using it.
Raymond Undy, twelve-year-old son of the plaintiff, and small for his years, told the Court that he had "sneaked'' the horse and cart to go to Cornelian Hay for a swim, accompanied by another boy, Ray Nicholls, and another "wee" boy brother of the latter. On their re- turn they were trotting the horse, up Albert Road from the direction of North all Park. On reaching tho Main Road intersection they stopped and looked to see if any other trafile was coming. Witness saw nothing coming, and put- ting his hand out, drove across the Main Road to travel on towards Glenorchy. He had just turned and was facing to- wards Glenorchy when the motor-cycle struck the horse. That was all he re- membered, as he was thrown out and rendered unconscious.
To Mr. Turner: At no time did witness see the motor-cycle before, it actually struck them. There was nothing on the road that he could see, except a sta- tionary tramcar, despite the fact that it was a race-day afternoon.
Roy Nicholls, the boy accompanying the last-named witness, said that his companions and himself were in a hurry to get home, as they had had no dinner. He too, saw the stationary tram only. When the motor-cycle collided with them ho was thrown out of the cart with Ray Undy, and like him was stunned by the fall.
LIKE AN AIRPLANE.
Walter Turner, an Albert Road resi- dent, stated that he was driving his spring dray, loaded with furniture, and was a short distance ahead of the boys when he turned out of Albert Road into the main road. Suddenly he heard a noise like that of an airplane flying low and, almost immediately afterwards, a scream. When last seen by him the boys were driving the cart at a walking pace across the road as though they in- tended keeping on up Albeit Road. Look- ing round after hearing the cry he saw the horse on top of' a motor-cycle and the boys thrown out. He lifted them up and put them in a car that took them to hospital. In the crowd that collected someone asked the defendant how the accident happened, and his replv was: "I don't know: I never saw the horse and cart until I picked myself up. Another person asked bim whose fault it was. and he replied, "My own." At the same time he asked what time it was, saying that he was in a hurry to get to his work in town. Despite the smash defendant appeared to be perfectly fit.
Wllliam Ratcliffe, an elderly man liv- ing close to the scene of the accident.
said the boys did not stop, but travelled slowly on to and across the main road ahead of the two stationary trams. The motor-cycle, which was travelling very fast, struck them as they were slowly making the turn which they had not completed. The plunging of, the horse swung the cart round. The defendant was under the cart and some people pulled him out. On being asked he ad- mitted that the collision was his fault.
To Mr. Turner: Witness did not see the motor-cycle approaching
Mr. Turner intimated that the counter- charge was that the accident was caus- ed by the negligence of the plaintilf, whose purpose of providing the horse and cart for the pleasure of his family had boen carried out by his boy, who was, In effect, his servant.' The defend- ant had the rlght-of-way, and the boy were contravening the regulation in pulling across his track on a perfectly straight road, where, if they were look- ing out, they had every opportunity of seeing him coming. The defendant had done nothing unreasonable nor against the law, but rather what the law requir-
ed him to do.
"The defendant said that at Hopkins Street he passed Constable Morgan, travelling at from 20 to 25 miles per hour. Immediately ahead was the Al- bert Street intersection. Knowing it to be a busy race day and that there would be traffic about, he proceeded cautious- ly. On his left was a stationary tram car, and wlthin a short distance off it he caught a fleeting glimpse of a horse and cart. He could not see who was driving. He therefore passed on the right of the tram, because the road that side was absolutely clear. From round the nose, of the front of the tram a horse and cart suddenly appeared; wit- ness had not enough speed to avoid them, as he had cased down to turn to the right of the tram. He jerked his bicycle to the right as well as he could to avoid the cart, which appeared to be heading straight on up Albert Road. The horse persisted in coming at him, and he crashed against its shoulder. The next he remembered wus that he was up against a telegraph pole with someone talking to him; he had no re- collection of anything that was said there, nor of seeing the wltnesses Tur- nor and Radcliffe before seeing them In Court. When the plaintiff subsequently visited him, witness informed him that he did not consider himself under any obligation to pay him any compensa- tion. Witness blew his horn when ap- proaching the intersection.
To Mr. Ogilvie: The accident look plac at 2.40, witness was due at his railway work at 3.5. When he passed Constable Morgan the stationary tram was pulled close up to the intersection, 50 yards' away. His course as he ap- proached it was about 8ft. from the gut- ter. Glimpsing the horse and cart he swung to the other side of the tram. Had he not done so he would have crashed into the back of the cart. He took his chance of turning into the clear side of the road, which, although it was ordinarily his wrong side, was open to him under the regulations, and crashed into the front of the horse and
To Mr. Turner: Witness was perfect- ly satisfied that under the regulations the track he took was open to him and that he had the right of way. He esti- mated the damage to his motor-cycle at £7 17s. 6d., and that to his uniform at about 30s.
Thomas Johnson, drover, estimated the value of the injured horse at about £8. At the time of the collision when witness first saw the horse and cart it was travelling at a "terriffic" rate; one boy was standing up wlth a whip in his hand, rousing the horse along. The next thing witness saw was the motor- cycle coming from the right-hand side of the tram. He did not see the cart pull up, nor the boys give any signal. What followed was that the horse crashed into the motor-cycle. One of tho boys was thrown under Water- worth's verandah, and the other on the north side of Albert Road. The other small boy, who was unhurt, picked him- self up and ran away.
To Mr. Ogilvie: Witness maintained that the horse, and cart was being driven at a rapid rate across the inter-
Gerald Reginald Harcourt, father of defendant, gave evidence that when the latter got home, his right arm was so bruised as to be almost paralysed. Dur- ing the evening he was making rambl- ing statements, and between 9 and 10 p.m. wanted to'go to work, although he had already been to town. In the after-
William Francis Head, of Glenorchy, stated that when standing at the en- trance to his brother-ln-law's halr dressing establishment at Moonah he had a clear view of what took place. The defendant sounded his motor horn twice when approaching tho intersec- tion. The horse and cart then appeared, driven at a trot, and appeared to be trying to beat the motor-cycle acioss to Albert Road. One of the boys was driving the horse, and the other one standing up and hitting It. Witness, who unharnessed the horse, denied cat-
phatically that it was swung round fac- ing Hobart. Having done a good deal of contract carting, he valued the horse at from £8 to £10. The defendant would be travelling at about 15 miles an hour, and the horse at a six-mile trot, the latter a risky proceeding at an intersection on a race day.
Constable Morgan gave evidence that in conversaition with him at the scene of the accident the plaintiff informed him that he had earned the money at the osmiridium field for the purchase of the horse and cart, and it belonged to the boys. The two trams and the distance he was away prevented him from actually seeing the accident.
To Mr. Ogilvie: When passing wit
ness the defendant was travelling at a speed of, 25 miles an hour, and had been' summoned 'for the particular offence of passing a stationary tramcar at a speed exceeding 10 miles an hour. witness had previously seen the boy Undy driving the cart on several occa-
Mr. Turner submitted that the plain- tiff's boys were in his custody, and dam- ag resulting from negligence on their part was the father's responsibility. Was it likely that the defendant would deliberately act riskily with the police- man close behind him. The defendant had acted throughout within the trafic rights, and no negligence could be
attributed to him.
Mr. Ogilvie reminded the Bench that on his own admission the defendant had passed the tramcar on the wrong side, and, in his own words, had "taken his chances." To justify the defendant in acting as he had done the roadway must be clear, and it was not, and he must not do more than 10 miles an hour, which he did. By pulling up he could have avoided the accident, of which it was clear he was the proximate cause.
VERDICT FOR PLAINTIFF.
The Police Magistrate said the evi- dence had been carefully considered, to- gether with the law points advanced. The conclusion arrived at was that the proximate cause of tho accident was the defendant's electing to go on the wrong side of the tram, and that in so doing he was probably travelling at a faster pace than his evidence declared. The position in which the horse was struck, in turn negatived his evidence. The plaintiff would be awarded £10 damages, and the counter-claim be dis- allowed.