1915-01-25xl

“On a charge of neglecting to use reasonable care, and being negligent, while in charge of an iceboat, William Davenport and Lawrence Callon, who struck little Constance Shipman on the bay on Jan. 16, and caused her death, and also injured Fern Menary, were committed for trial by Magistrate Jelfs this morning.”

Hamilton Times.   January 25, 1915.

The formal appearance of Davenport and Callon in court on January 25, 1915 was much-anticipated, but, ultimately, the result was anti-climactic.

The initial charge of manslaughter against the ice boaters had been changed, and somewhat reduced by Hamilton’s Crown Attorney. Rather than manslaughter, the lengthy charge, written in dense legalese, referred mainly to negligence, rather than intention.

The witnesses called, and the evidence given, was virtually identical as was the case at the coroner’s inquest. The occupants of the ice boat were not called to testify.

The proceedings were rather short in duration. Magistrate Jelfs made a definitive ruling that in his opinion, the charge was too serious to be dealt with in a police court and that it should be referred to a higher court. Similarly, as the charges were so serious, the magistrate refused the application for bail.

The accused, Davenport and Callon, were kept in custody for month than two months, waiting for their day in court.

That day came on April 7, 1915.

A jury of twelve men was chosen. John G. Farmer, Q. C., Crown Attorney handled the case for the prosecution, while Davenport and Callon were represented by noted lawyer, C. W. Bell.

The first witness, Albert Handsome, stated that he was skating on the bay that afternoon. Handsome estimated that there were “thousands” also skating on the bay, and that in sections of the bay, the crowds were very thick.. He remembered that the wind was blowing from the northeast with great velocity.

Handsome stated that he had seen Davenport’s ice boat approaching from a southeasterly direction:

“”There were six or seven men on the boat. He had noticed them first about 200 yards from the line of skaters, coming toward the high level bridge.

“ ‘Did they give any warning?’

“ ‘Yes, someone called ‘Look Out!’ The boat was coming at about forty miles an hour, and they did not slacken speed.’ ”²

² “Manslaughter Trial Concluded at Noon : Both the Accused Men Went Into Box on Their Own Behalf”

Hamilton Times   April 7, 1915.

Fern Menary, who had not been able to testify at the coroner’s inquest, was able to be present at the trial;

“Constance had ahold of her arm. They were coming from the north shore and had not seen the boat until it was right on them ; it came swiftly and without warning.

“Questioned as to her age, she said she was thirteen, while Constance was only eleven. They were on the ‘rink’ when the boat struck them.”¹

Constance Shipman’s mother was called to testify. She, in a low voice,  swore that “the little one had been in the best of health before the accident, that she was always smiling and happy.”²

Defense lawyer Bell called several witnesses to let the weather conditions be accurately known. John Jamieson, manager of the C. P. R. Telegraph Company, submitted an authorized report on the temperature and wind speed that afternoon, but it was not allowed by the judge :

“ ‘This,’ His Lordship said, ‘was not evidence. This man gets this over the telegraph wire. I cannot take it.’ ”²

Another witness, Captain J. H. Fearnside, a noted sailor and steamboat captain, fixed the wind speed that afternoon at about 12 or 14 miles and hour. Fearnside stated that he had been on the ice that afternoon in his automobile. If the wind speed had been as much as 25 miles an hour, it would have blown his ‘machine’ all over.

J. Murphy had also been out on the icy surface of the bay and the wind speed, in his estimation, was “a 15-mile breeze” and that if the sail on the ice boat had been pulled tight, the ice boat would not travel anywhere near that speed.

William Dillon who had eighteen years’ experience as an ice boater, and who knew Davenport ‘s ice boat. Testified that it was a slow boat, and could not attain a speed of twenty miles an hour even in a high wind.

Thomas Holt, a passenger on Davenport’s ice boat that afternoon testified that he had shouted and shouted at the girls as the ice boat approached them, but no attention was paid. He also claimed that the runners on the ice boat were not very sharp that day, and it had been skidding a great deal that day.

Lawrence Callon was called to the stand:

“He stated that he was 33 years old, had a wife and family, and was steadily employed at the Hamilton Bridge Works. He had sailed an ice boat for 22 years, and had never before had an accident of any description.

“ ‘We were partly through the crowd – the girls were standing in a crowd of men and skated out. Had they stayed with men, they would not have been hurt. I could not turn out of the way, else I would have run into the crowd and maybe have hurt a great many more. I am sure the boat did not strike the little girl’s head.’ ”²

Finally Callon emphatically denied that he had refused to provide his name after the accident, nor had threatened those who were clinging to his ice boat.

William Davenport followed Callon to the witness stand:

“ He stated that he was 33 years old, and had a wife and five children. He was employed by the Hamilton Cotton Company, had been an ice boater for twelve years.”¹

Davenport’s evidence regarding the accident and the aftermath was exactly the same as Callon’s evidence had been.

At this point, His Lordship Chief Justice Meredith called for a lunch break. Upon return at 2 p.m., the jury delivered its verdict.

Davenport, the ice boat owner was declared to be not guilty of the charge, but Callon, the driver was declared to be guilty.

The Judge was prepared to pass sentence immediately but Lawyer Bell requested a few hours’ grace so that Callon’s family could be informed.

As the court room clock was chiming the 5 o’clock hour, Callon was led into the dock. His wife and children were already seated:

 “Not a sound was heard as Callon faced the judge. Mr. Bell started to speak in his behalf, outlining the life of the prisoner from his early boyhood. He said that the accident was deplorable, that Dallon felt it more keenly than anyone else – he had little children of his own, and why would he intentionally hurt some other’s little kiddies.

“He was ready to bring a number of prominent men to speak for the prisoner, among whom was His Worship the Mayor.

“ ‘Callon’s foreman,’ he said, ‘could speak in glowing terms of the young man. He could tell of his industry and ability; could tell of how he was temperate in the use of liquor, and wanted him to go back to work in the morning.’³

³ “Indeterminate Sentence in Ice Boat Case “

Hamilton Times.  April 8, 1915.

The conclusion of the trial was reached when the judge summarized the proceedings and delivered his sentence:

“ The Judge laid particular stress on the dangers  that surrounded ice boating, especially when they were driven at breakneck speed in the vicinity of skaters.

“He carefully went into each detail of the accident, telling of innocent little Constance Shipman out enjoying the fresh air with her friend, Fern Menary, and how, with terrible suddenness the boat bore down on her, without the slightest warning, sending her spinning to her death.

“The prisoner, he said, had a fair trial. He and the jury knew that a great mistake had been made in running the boat so carelessly: ‘There is not the slightest doubt that you could have avoided the dreadful occurrence; there is no legitimate reason why it should have happened; it was due entirely to your carelessness. The owners of the other ice boats recognized the danger of running through the crowd that stretched across the ice. They stopped their boat, got out and pulled t across. You should have done the same.

“ ‘Your lawyer has ably laid before me a history of your past life. He has given evidence as to your previous good character. It is only that which stops me from giving you a much longer sentence. It would be a mockery of the law to allow you to go. It would give an impetus to crime Such a thing I will not condone. You can appeal my decision – throw yourself on the mercy of a higher court. Whether you would get off entirely or not, I cannot say. Many prominent men have interceded in your behalf; their pleas have been carefully listened to.’ ”³

Callon was given an indeterminate sentence – he would have to serve three month’s in jail at the minimum, or one full year in jail maximum. The Judge did not publicly specify what would ultimately determine the actual time Callon would have to be in jail.

After the Judge’s sentence was stated, he adjourned proceedings. Callon was taken to the Sheriff’s office to await the auto which would convey him to the jail. He fondly said goodbye to his wife and children as he was being led away.