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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Landsdowne [1840] NSWSupC 7

manslaughter, road accident, careless driving

Supreme Court of New South Wales

Willis J., 6 February 1840

Source: Sydney Gazette, 8 February 1840[1]

            Nabucadnezar Landsdowne was indited for having, on the lst day of November last, at Clarke's Creek, been the cause of the death of a woman named Eleanor Davis, through carelessly driving his dray, by which it was overturned, and the woman was thrown therefrom, and bruised in such a manner as to cause her death.

            Frederick Croft, a boy about twelve years old was then put into the witness-box; before being sworn, the Judge examined him strictly as to his knowledge of the nature of an oath, and his answer being satisfactory, his evidence was accordingly taken - he deposed that he knew the woman named Eleanor Davis, and that on the lst of November last, he had been riding on Mr. Townsend's dray, going to that gentlemen's farm, and that she (Eleanor Davis) was likewise on the dray; it was a dray drawn by bullocks; when the dray was crossing the river at Clarke's Creek, it was going very fast; the prisoner was driving, and the bullocks were trotting; as they were crossing the creek, the dray was upset.

The Judge then asked if the slope down to the river was smooth or rough, as he said that was a most important point for the consideration of the Jury.

The witness then continued - The bank were smooth; there were no chains to the wheel.

            Mr. Justice Willis then remarked to the Jury, that the great thing in this case for their consideration, was whether the dray was overturned by accident or by carelessness, and expatiated on the necessity of their paying attention to that point, which seemed to him the principal one on which they were to decide whether the prisoner was guilty or not guilty.

            The examination of the witness then continued - The dray was going very fast before it came to the slope; there was a watering place for bullocks right below; the bullocks could see it; did not know whether the dray went over Davis or not; she was sober; she was left on the banks, and the dray proceeded on; she was severely hurt in the fall, and was picked up and put on the dray again; they left the woman lying on the banks.

Cross-examined by prisoner. - Did not see him (prisoner) knocked down by the bullocks; he might have been knocked down, but he was so badly hurt himself that he did not pay attention; he was unwell for some time after from the bruises he received.

(The Judge here expatiated for some time on the woman's having been left on the bank; at the same time he told the Jury that that was a point with which they had nothing to do; what they had to decide upon was simply whether the dray had been overturned by accident or otherwise; besides, he thought that if the cattle were thirsty and were accustomed to drink at that particular place, it was very natural to suppose that they would hurry to the spot.)

Edward Renz was then examined. He deposed that he perfectly recollected the 2nd of November last; he was walking on Mr. Correy's farm when he was attracted by the barking of his dog; he found the body of a woman, but was not aware who it was; this was between 11 o'clock and noon; by the conversation he had with her he did not think she had the slightest idea she was going to die; she appeared as if she had been drinking, and an empty bottle was at her side; he immediately sent a man to take her where she wanted, giving him instructions at the same time to take her first to a doctor.

Robert Park was then examined. It appeared that he was a surgeon, and that he had been called in the beginning of November last to see Eleanor Davis; she was at that time labouring under severe inflammation of the lungs, and likewise had several bruised on different parts of her body; did not think that the inflammation was caused by the bruises alone, but by stopping out all night; he suspected from what she said that one or more of her ribs were broken, and on examination he ascertained it to be a fact.

Cross-examined. - It was quite probable that broken limbs would cause inflammation; he decidedly thought that the wounds had been the cause of her death; she said to him that she was dangerously ill, and that she did not think she would ever get over it; she likewise stated that she had been overturned in a steep place through the carelessness of the driver, who she said was drunk, and that she was so severely hurt, that she could not move; she further stated that she had been greatly abused by those who had charge of the dray; witness first saw her about 4 o'clock in the afternoon of the 20th November last; drinking might have caused the inflammation; he asked her if she had been drinking, but she denied it; deceased was about 60 years of age.

The prisoner being now called on for his defence, said that the whole was merely accidental, and that he was quite sober at the time; he stated that he could not get her on the dray, and as he was forced to be home he thought it best to proceed; he reported the circumstance to his master, Mr. Townsend, when he arrived; having no witnesses as to his character, both Dr. Park and Mr. Renz rose from the witness seat, and testified that they had frequently heard Mr. Townsend give him a high character for sobriety, &c.

The Jury without retiring found him not guilty, and he was discharged, with an admonition to be more careful in future.

Notes

[1] See also Australian, 8 February 1840 and Sydney Herald  7 February 1840.

Published by the Division of Law, Macquarie University