CLAIM FOR DAMAGES

Bay of Plenty Beacon, Volume 2, Issue 237, 13 November 1940, Page 5

CLAIM FOR DAMAGES

seqijSl to accident PLAINTIFF NON-SUITED • A claim for £91 lis, made up •of £75 general and £16 lis speci.al damages, was brought by . William Jionxas. Cox (Mr B. S. BarryK against- Alice Amelia Boon (Mr G f Otley), before Mr- ' E. L. Walton,S.M., in the Mag-istrate's-Court yesterday. The •clSaim* was -a -sequel td an ; acci-i ■dent at Poroporo on the evening of May 25, when plaintiff was alleged to have been struck ty a year driven by Mrs Boon. rPlaintiff claimed that the acci,dent -was- due. to negligence on■the p'art of Mrs Boon; that she was driving at an excessive •speed-* and that she did not exproper control over the The case was concluded 1 shortly after the luncheon adjournment . when defendants counsel asked . for a non-suit on the ground's that plaintiff had not proved negligence by Mrs Boon. The Magistrate allowed' the nonsuit j stating, inter alia* that plaintiff was the author of his own injury. Mr Barry said the accident occurred at about 7 p.m.. on May 2;>. "Plaintiff owned a farm at Poroporo. living in Whakatane, and was in the habit of walking to and from his farm. On the night in question he -was -walking back to Whakatane -and was crossing the road at the junction at Poroporo. He walked along the riglit-hanci side of the Whakatane Road and past Glen's store to the right-hand side •of the Rotor u a->W haka tan e Road. Defendant's car, proceeding from itlie direction of Rotorua, struck plaintiff and knocked him unconscious. He was in hospital for five -weeks. Plaintiff claimed that the accident was due to negligence on the part of, defendant in that she 'did not keep a proper look-out; she w r as driving at an excessive speed, J -and that she did not excrcisle proper control over the car. The night was clear; there was a light at the j •.store and there was good visibility. Injuries Detailed. J • "If there was contributory negligence, which we deny, we contend that Mrs Boon had the last oppor-* tunity of avoiding an accident. It is. a wide road and if she had been keeping a proper look-out she must • "have seen plaintiff,*' said Mr Barry. Plaintiff's jaw was fracturcd, counsel continued, and the lower set of his artificial teeth broken. There were medical and ambulance costs to be met by plaintiff and he had spent Jive. weeks in -hospital for some of which time his life had been despaired of. He was not a young man and his health was affected; he was not now in a lit state to carry on his farming operations. Magistrate's Observations. William Lomas Cox, in the box, said he was walking back to Whakatane from bis farm at Poroppro ■on the evening of May 25. Pie walked on ~the right-hand side of the bitumen on the Tauranga-Whaka-tane Road. Plaintiff here produced :'a plan of the locality. His route took him past Glen's store and he walked straight ahead to cross the Rotorua-Whakatane Road. He looked for traffic and saw none. When he got part of the way across lie :saw a car on his right.

Elaborating an answer plaintiff saidV*"lf I was walking at / miles perhour and the jyas travelling at 30 miles . hour, it would be going ten tithes as fast as me ..." \The magistrate interrupted: "Do not make calculations. I wriy own." "Thank you . . ." The magistrate: "And another thing, do not answer me back. Just do as you are told.'" Plaintiff Continues. Continuing, plaintiff said that when he saw the car he broke into a jog-trot. He could remember getting on to the crown of the road— which at that place falls away to a water-table on the South-East side —but he had no recollection of being struck. He had considered that he had readied a safe position when he started to walk again. The car -could have passed behind him.

Plaintiff detailed the injuries he suffered and said lie had to have a new set of teeth made at a cost cf 15 guineas. Special damages,; were

made up witll, tha^t,. medical and ambulance charges: His general health had suffered. Cross-examined, plaintiff said he was 73 year"-: of age. When he was past Glen's store he looked along the Rotorua Road. It was possible to see about 300 or 400 yards. He did not see the car immediately and when lie did see it he thought there Avas no desperate hurry.' . Counsel quoted the Traffic Regulation which states that where pedestrian crossings are not provided,, pedestrians should cross roads' at right-angles. Did plaintiff cross the/road at right angles? Plaintiff said he did not. Further Evidence. Norman James Cox, son of the plaintiff, said he and his brother-in-law proceeded to the scenic of the accident: immediately upon advice. The next day, as soon as daylight broke, witness again visited the locality and lie described the position of blood marks. He also detailed an examination lie had made of defendant's car, of which the left headlamp Avas broken. He had spoken to defendant on the afternoon following the accident and she had told him that plaintiff ran out from the bowser (on the corner, near the.store), stopped, ran again, and fell-in front of the car.

Teriri Horopapera, known as Mrs Dick Rangihika, demanded an interpreter and the services of Mr A. O. Stewart Ave re procured..

Witness said that at about 7 pjm on Ma}' 25th she was standing in front of the store. There was a light outside the store. Plaintiff walked past her. on the outside of the pole which stands in front of the store. She watched plaintiff and saw him go straight ahead. She did not see him hesitate or stop. She saw him run. The car. was not very far from him when he started to run and he had not reached the down slope of the.road' When the car hit him. He Avas running when he Avas struck.

Defendant's car, said Avitness, was on the correct side of the road and it seemed to swerve slightly when it AA 7 as near plaintiff as if the driver was endeavouring to avoid him.-It seemed to witness that the car avasslowing up at the time. Witness indicated on the plan the point at Avhich the car finally stopped. The night was fine and she could see plaintiff quite clearly as lie crossed the road.

At this slage the luncheon adjournment was taken and upon resumption Mr Barry indicated that liis case was completed. Application for Non^suit. Mr Otley said that the onus was on plaintiff to prove negligence and that Mrs Boon's negligence caused the accident with no contributory negligence by plaintiff. The plaintiff alleged that defendant failed to keep a proper look-out but there Avas no evidence to support this. Mrs Rangihika had said that defendant swerved just' before the impact. If the question of last opportunity arose, lie would point out that it was noli an easy thing to pull up a big sedan car. The plaintiff was running across the road and it was not possible for defendant to pull up immediately. . .

The magistrate: She pulled up within thirty feet. Continuing, Mr Otley said there was no evidence to show that defendant was on the wrong side of the road. The magistrate: All the evidence shows that she was on the correct side of the road. The third point, said Mr Otley. was the allegation of excessive speed, the magistrate observing that there was no evidence of that. "I submit that the onus is on plaintiff to prove negligence, and that negligence causcd the accident, and that has not been established," said couusiel. "I ask for a nonsuit." Counsel's Submissions. Mr Barry submitted that evidence had been given to show that no proper look-out had been kept. Defendant Should have seen plaintiff. The fact that she drove right up to him before seeing him proved that she was not keeping a proper lookout. Defendant could have swerved behind plaintiff or pulled up.

The road at this point was banked, said Mr Barry, and the tendency on all banked corners was to keep; to the incorrcct side. In support, counsel submitted that plaintiff was struck by the left-hand side of the car was thrown to the left. That meant, from the. position where plaintiff was picked up, that defendant was not on the correct side of the road. Regarding the excessive speed, Mr Barry said there was no evidence of that and that (Continued at foot of next column)

clause would have to be abandoned. As for the control of the car, defendant could have pulled up or swerved. Counsel submitted that there was sufficient evidence to support the plaintiff at this stage. Magistrate's Remarks. "As I see it plaintiff received injuries by colliding with a car at night," said the magistrate. "Plaintiff was travelling on the righthand side of the road prior to the accident. At the intersectian he saw a car approaching on his right. The car was travelling on its correct side and at no excessive speed. Plaintiff thought that he had" time to cross and commenced to jog-trot —a witness said 'run'. Having made that decision the collision, in my opinion, occurred while plaintiff Avas still running and he Avas 1 the author of his own injury.

"Had he been sensible," said His Worship, "he would have stopped and let the car pass in front. I cannot see anything wrong with what the car driver did. She pulled up in 30 feet and she was on the correct side of the road. 'Slic must have been keeping a good look out bccause the evidence says she swerved. No motorist can be expected to allow for a crossing pedestrian increasing his pace.

"Defendant is entitled to ask for a non-suit and plaintiff will be nonsuited accordingly."