HEAVY DAMAGES CLAIMED.

Press, Volume LXVII, Issue 20170, 24 February 1931, Page 4

HEAVY DAMAGES CLAIMED.

!. MOTOB-CYCLE COLLISION. BOTH PARTIES HELD TO BE NEGLIGENT. Arising from a collision between two motor-cycles at the intersection of Oxford terrace , and Madras street in , October, 1929, Maxwell Rogers, of] . Christchwch, motor-car trimmer s | apprentice, claimed in the Supreme 1 Court yesterday, before his Honour 1 Mr Justice Kennedy, the sum of £894 - 16s 6d damages from. Albert Charles • Birchfield,' formerly of Christchurch, c and now of Kaimata, West Coast* j Upon the . findings of- the / jury, which were on the basis of a three-fourths > majority, his Honour, gave judgment ; for the defendant with costs. according t to scale, witnesses' expenses, and disbursements. ; , Mr P. W. Johnston appeared for ! the plaintiff and Mr C, S. Thomas for , tho defendant. The statement of claim alleged that | on October 17th, 1929, the defendant 1 so* negligently managed and rode his ! motor-cycle that he collided with- a ! motor-cycle ridden by the plaintiff at i the intersection of Madras street and > Oxford terrace, the nrgligence, consist- ; in excessive speed, failure to keep a proper look-out, and when a collision was imminent, failure to take... reasonable steps to prevent the accident. As a result of the collision the plaintiff sus- ; tained a complete fracture of .the right thigh bone, a complete fracture or> the upper right humerus, while the motor- ' wde was damaged'to'the extent ot hi 6s. The plaintiff was admitted to the ' Christchurch Hospital on October 1/th •. and was discharged on December 23rd, r his leg then being in a jsphnt. irom . ithe date of the accident the plaintitt was totally inpapacitated for 16 weeks. Considerable bowing of the bone of the leg bkd taken place, shortening the 'limb and throwing it out of akS": ment. Siii'ce Bis discharge the P^ 111 ,' 1 ? had undergone further treatment, bu h© was now oermanentlv partially disabled, with the result that his earning power would be permanently, dimin- . fehod. The claim comprised: Medical treatment, £sl 10a 6d; „ motof-cycle, £2 6s; damage to and shoes, £5; loss of work, £36; esti- , mated expenses of, further nnd medical expenses, £SO; general damages, £750. Total damages, £894 ■ 16s 6d. , Negligence Denied. ; Cln his' statetdent of defence, the do- , fendant deuiod that he was iiogligGiic in-riding hia motor-cycle at an excessive spew, in failing to keep a proper »,>l(jqk£)ut, of failing to Such eteps, ; . ( 'possible to-avoid the collision. , ! 'He W'rt&sr d«iied that plaintiff f tad' qistaiued the the dam- ' hse-.to motor-cycle, tW: he had ; ■ tocapacitated. As a further der .i f aUeg#;that; if ho w?w s i ' *I»A -ntiintifE W«« .WW'^il in } ling yto' feeep a' ■ ■to givO. way to ■and.m un^il.t Jattal mft vns WoTace -when; the approached m tho middle Bffl®e Voad;?>Th6 Jattcr siwerved to the right.as though- to,turn the corner, \ hi"the" , letter's machiue in the centre. The ■ cfeaoor riding with 'ma- brother, a com-. drivtei pn ithe pillion seat, 'fhe borrowed < one, bat hod no » a^Sa^ ■4 saw 0;tho imI -saw, no , $> if ' ~ , piA a regulation remotor vehicle ' tf uo ■ ■, . sidebar. i a Ox(gi^ace/^approaching- \ miles on " hour.' her * L at I'-Wues ,'an 'houT. Rogers was - travpjling at; a moderate speed. , i? - that ( Court, \ >tMt hor., > iijorner, and,.then. ■' j'SWill (feaVe' medi- t I thigh-bone he sftid j munition,, .this j PP^Aess. prised- ? t tei'the: :«triaighten- < Jo^of; ac- i '5 lld '

atThour, slackening to 14 or 15 at the crossing. About 10 or 15 yards< back from the corner he saw Rogers 40 yards down Madras street, just over Chester street. Thinking there was plenty of time, and having the right of way, Birchfield went on over the intersection, but seeing that Kogers had no intention of slackening, accei- . erated a little. Rogers shot across as 5 if trying to get over ahead of Birchfield. and the collision occurred practically on the crown of the road or » little on Bi'rehfield's correct side. Birchfield, in evidence, said that he • had been riding motor-cycles for four f or five years. He was a licensed rider. » Witness gave evidence along the lines of E Mr Thomas's address. "He added that 3 it was untrue that he had told Bogers , he was in a hurry to. get .to .drill*, Herbert Brett, organ tuner, said that he was standing in Oxford terrace when the accident occurred. Birchfield was i travelling at abput 15 miles an, hour. , Witnesß did not see the witness, Miss . Wiggins. The speed of Bogers's machine i was about 30 to 35 miles an hour. Birch- . field was half-way across the i-tersec- ! tion before the other machine reached "it* c ■ •. ■ 1 • Homer Gibson, who was standing ' on the bridge, said that Birchfield was travelling at 15 miles an hour. He • slowed- down on the crossing. Birch-; . field was firßt on the intersection. Witness thought Rogers was travelling at a dangerous speed for a, crossing. . • ' To Mr Johnston, witness, saidthat ' his estimate of Rogers's speed was 1 largely based on the noise the machine » was making. His attention was attract" i e a to Birchfield's machine by its reasonI able speed in view of its obvious power. Statement to Police. y Constable J. M. O'Hallpran said he 1 took a statement from Kogers in hos- " pital. ; i Mr Johnston asked if the statement was taken in writing. His Honour: Any statement im , ad--1 missible. / Continuing,, witness said that Bogers stated he was travelling "at a moderate speed of approximately 20 miles an hour." He was half-way across before he saw the other machine. Mr Johnston: The statement was committed to writing?— Yes. It is still in existence?— Yes. Are you not making a mistake in saying 20 miles an hour? —No. ■ . Are you depending on your memory? —No. I have consulted the statement. Summing up, his .Honour said', that the grounds of the felaim were negligence, which wsis defined as the failure to take such care as, in the circumstances, any reasonable man would take. Any negligence proved would have to be an operative: part of the uscident. The ordinary reasonable man would take care to observe the requirements of the law and the regulations for the movements of vehicles on the highways. One of'these regulations provided that motor 'vehicles must give ;way at an intersection to vehicles on the right when there was any possibility of a ollision. The defendant also alleged negligence on the part of the plaintiff. In his case, 41 as in the case of the plaintiff, the onus of proof lay' on the party making the 'allegation. If' it was fpund that both ; were - negligent it would, be . necessary i toCdetermine whoso .negligence ! was the of the accident; in other • W.#4a, who had the last opportunity of ; the collision. [ v'- The issues. The'jury retired at 5.10 p.m. and re.'turned at £.25 p.m., with the "issues" I as follows: — ' "V'TStas the: defendant negligent:— f In, riding, his motor-cycle at an ■ excessive speed?— Yes. ' • 'Kit? j.'ia' failing to'keep a-proper look-. ' , collision being imminent, in. failing to take reasonable steps to prevent such collision?-—Yes. Was the plaintiff negligent:— .;■ . -i 11l travelling at an excessive speed? <lf.No. In Jailing to keep a propier lookout? Yes. ' In failing to give way when aprproaching an-intersection to a vehicle coming from his, right P~No. In unskilfully managing his xnotorcycle, immediately prior to> the ixn- , ptfctf—rNo. ' » ■ ' j If both.plaintiff and defendant were ' 1 • Was the .'l'V'xaAi of;!*$&'• collision, that of ; / the plaintiff or tho defendant, or of ■ hbth t—l' -vMußrtrt'tfr'tliß ■ 4 a)>6ve Jquestions.—Special damages £ll4 16s pd, general damages £250, '"ToWv£3SOOS Ad. i., MrThpmSa moved for judgment, Mr Johnston agreeing that.in the light of his direction he could not, jnovo on behalf of defendant. His Hon- , our said it was clear* upon the findings, . that the. defendant'was entitled to judgf -meni. . -' ' >